There is increasing public debate about privacy of our personal information. One relevant concern is the retention by the police of material that can be used to identify individuals: fingerprints, physical samples and DNA profiles. The recent decision of the European Court of Human Rights (ECtHR) on this subject, in Marper, has profound implications for the future.
The taking of fingerprints and samples in the course of police investigations is familiar and, in general, accepted. The retention of such material after an individual has been acquitted, or after criminal proceedings have been discontinued, was however unlawful prior to May 2001 under s 64 of the Police and Criminal Evidence Act 1984 (PACE). The position was altered by new s 64(1A) of PACE, providing that such fingerprints and samples may be kept even after they have fulfilled the purposes for which they were originally taken. They may only be used for the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution; but there is no time limit for retention, and nor does it matter how old the individual was when the sample was taken.
As a result of these changes, by September 2007 over 5% of the UK population had their DNA profiles recorded on the national DNA database. The profiles are digitised information, derived from the physical samples taken during police investigations. At this point Sedley LJ (speaking extra-judicially) called for the database to be extended to the entire population of the UK. One of the concerns that prompted his intervention was the disparity between different racial groups: some 40% of black men were on the DNA database, as compared with 13% of Asian men and 9% of white men.
Shortly after the law was changed in 2001, two individuals brought a test case. One, known only as “S” in the proceedings, had been arrested in January 2001 at the age of 11, and charged with attempted robbery. The second individual, Mr Marper, was arrested in March 2001 (at the age of 38) and charged with harassment of his partner. Neither had been convicted (S was acquitted, and proceedings against Marper were discontinued). Both individuals brought claims for judicial review, arising out of the police refusal to destroy their fingerprints and samples, and to remove their profiles from the DNA database. They argued that the retention of this material contravened their right to private life, under art 8 of the European Convention on Human Rights.
The claims were dismissed in the Divisional Court:  EWHC 478 (Admin). Before the Court of Appeal, Liberty was given permission to intervene. Liberty argued that the range of information that could be derived from the retained physical samples was potentially very great, going well beyond what was shown by the DNA profiles held on the database. The sample might reveal an individual’s true paternity; or future scientific developments might allow them to be used, in order to assess an individual’s genetic propensity to commit crime. Despite these arguments the Court of Appeal upheld the decision of the Divisional Court by a majority (with Sedley LJ dissenting).
Human rights issues
An appeal to the House of Lords was dismissed on 22 July 2004:  UKHL 39. The main issues were as follows:
i) Whether the retention was an interference with the appellants’ right to respect for private life pursuant to art 8(1) of the Convention and, if so, whether it could be justified under art 8(2) as being necessary and proportionate. Four of their Lordships doubted if there was any interference at all with art 8 rights; any interference was at most very modest, and could readily be justified for its value in criminal investigations. Lord Brown in particular found the benefits of the database to be “manifest” and the objections “threadbare”. Baroness Hale alone accepted that there was clearly an interference, but even she agreed that it was justified.
ii) Whether a distinction should be made between the retention of DNA profiles and samples. No such distinction should be drawn on the basis of the use currently being made of this material. When and if samples were used in the wider ways that Liberty had referred to, then the matter could if necessary be reconsidered.
iii) Whether the retention involved unlawful discrimination for the purposes of art 14 of the Convention. This argument was also rejected.
iv) If there was any breach of Convention rights, what was the legal consequence? Given the other conclusions, this did not arise.
The ECtHR gave judgment on 4 December 2008 (Case of S and Marper v The United Kingdom (Applications nos 30562/04 and 30566/04). and took a radically different approach from the House of Lords.
The ECtHR accepted that the retention of physical samples and DNA profiles involved an interference with the respect for private life under art 8(1). Concerns about the possible future use to which genetic information might be put were relevant in establishing that this was so. Although the DNA profiles and fingerprints were less informative than the samples, their retention also involved an interference with the art 8(1) right.
Such retention was found not to be proportionate under art 8(2). The power to retain was “blanket and indiscriminate”; retention was not time-limited, and the nature or gravity of the suspected offence, and the age of the suspected offender, were not taken into account. There was limited scope for an acquitted individual to have the data removed from the database, or destroyed. Retention could have a stigmatising effect on the individuals concerned, and could be especially harmful in the case of minors. The court was strongly influenced by the fact that other states that were party to the Convention had taken a much more limited approach to the retention of DNA information.
What will follow from the Marper decision? On 16 December 2008 the Home Secretary Jacqui Smith was reported as saying that there would be consultation about “bringing greater flexibility and fairness into the system” and suggested “a differentiated approach possibly based on age, or on risk, or on the nature of the offences.” She was also reported as indicating that the DNA database should be expanded to ensure that all serving prisoners were covered.
What about Sedley LJ’s suggestion of a national DNA database covering the whole population? There is no sign of any Government or public enthusiasm for Sedley LJ’s suggestion, not least because public trust in the security with which personal information is held by Government is at a low ebb.
Imagine, however that over the next few years there are some widely-publicised cases where the Marper decision is said to have an adverse impact on criminal investigations. At that point there may be real political pressure for a national database to be considered, and the question whether this is permissible in the light of the Marper case may need to be addressed. As genetic science continues to advance, issues about its legal implications will undoubtedly become increasingly urgent. Marper is an important milestone; it is by no means the last word.
Timothy Pitt-Payne is a barrister at 11KBW. This is an edited version of an article that first appeared in the New Law Journal, 16 January 2009