European Court of Human Rights rules against UK government on DNA retention

The European Court of Human Rights has today ruled against the UK government in a test case looking into the question of whether South Yorkshire police should have retained the DNA of two men who were not convicted of any offence. The case is S. and Marper v UK. The 17 member Grand Chamber of the court unanimously declared the UK to be in breach of Article 8 of the European Convention on Human Rights. Article 8 states:

"ARTICLE 8

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."

Liberty and Privacy International had made submissions to the court supporting the two men. The relevant extracts from the decision, from my perspective, are:

3. The applicants complained under Articles 8 and 14 that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued...

Nuffield Council on Bioethics' report²

38. According to a recent report by the Nuffield Council on Bioethics, the retention of fingerprints, DNA profiles and biological samples is generally more controversial than the taking of such bioinformation, and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints, given the differences in the level of information that could be revealed. The report referred in particular to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints, samples and DNA profiles from all those arrested for a recordable offence, irrespective of whether they were subsequently charged or convicted. The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors, having regard to the requirements of the 1989 UN Convention on the Rights of the Child...

47. The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings. Ten other States apply the same general rule with certain very limited exceptions...

48. The retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person's death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons...

54. In the case of R v. RC [[2005] 3 S.C.R. 99, 2005 SCC 61] the Supreme Court of Canada considered the issue of retaining a juvenile first-time offender's DNA sample on the national data bank. The court upheld the decision by a trial judge who had found, in the light of the principles and objects of youth criminal justice legislation, that the impact of the DNA retention would be grossly disproportionate...

55. Article 40 of the UN Convention on the Rights of the Child of 20 November 1989 states the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society...

66. The Court recalls that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person... It can therefore embrace multiple aspects of the person's physical and social identity... Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8... Beyond a person's name, his or her private and family life may include other means of personal identification and of linking to a family... Information about the person's health is an important element of private life... The Court furthermore considers that an individual's ethnic identity must be regarded as another such element... The Court furthermore considers that an individual's ethnic identity must be regarded as another such element... The concept of private life moreover includes elements relating to a person's right to their image.

67. The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000-II)...

68. The Court notes at the outset that all three categories of the personal information retained by the authorities in the present cases, namely fingerprints, DNA profiles and cellular samples, constitute personal data within the meaning of the Data Protection Convention as they relate to identified or identifiable individuals...

70. In Van der Velden, the Court considered that, given the use to which cellular material in particular could conceivably be put in the future, the systematic retention of that material was sufficiently intrusive to disclose interference with the right to respect for private life (see Van der Velden cited above)...

71. The Court maintains its view that an individual's concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference... ccordingly, the Court does not find any sufficient reason to depart from its finding in the Van der Velden case...

73. Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion (see Amann cited above, § 69).

74. As regards DNA profiles themselves, the Court notes that they contain a more limited amount of personal information extracted from cellular samples in a coded form...

75. The Court observes, nonetheless, that the profiles contain substantial amounts of unique personal data... In the Court's view, the DNA profiles' capacity to provide a means of identifying genetic relationships between individuals (see paragraph 39 above) is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned...

76. The Court further notes that it is not disputed by the Government that the processing of DNA profiles allows the authorities to assess the likely ethnic origin of the donor and that such techniques are in fact used in police investigations (see paragraph 40 above). The possibility the DNA profiles create for inferences to be drawn as to ethnic origin makes their retention all the more sensitive and susceptible of affecting the right to private life...

77. In view of the foregoing, the Court concludes that the retention of both cellular samples and DNA profiles discloses an interference with the applicants' right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention...

84. The Court is of the view that the general approach taken by the Convention organs in respect of photographs and voice samples should also be followed in respect of fingerprints. The Government distinguished the latter by arguing that they constituted neutral, objective and irrefutable material and, unlike photographs, were unintelligible to the untutored eye and without a comparator fingerprint. While true, this consideration cannot alter the fact that fingerprints objectively contain unique information about the individual concerned allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant.

85. The Court accordingly considers that the retention of fingerprints on the authorities' records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private-life concerns.

86. In the instant case, the Court notes furthermore that the applicants' fingerprints were initially taken in criminal proceedings and subsequently recorded on a nationwide database with the aim of being permanently kept and regularly processed by automated means for criminal-identification purposes. It is accepted in this regard that, because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the Court, like Baroness Hale (see paragraph 25 above), considers that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life...

100. The Court agrees with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection, and therefore, prevention of crime. While the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders...

105. The Court finds it to be beyond dispute that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by today's European societies, depends to a great extent on the use of modern scientific techniques of investigation and identification...

106. However, while it recognises the importance of such information in the detection of crime, the Court must delimit the scope of its examination. The question is not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention. The only issue to be considered by the Court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under Article 8, paragraph 2 of the Convention...

109. The current position of Scotland, as a part of the United Kingdom itself, is of particular significance in this regard. As noted above (see paragraph 36), the Scottish Parliament voted to allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff...

England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence...

111. The Government... argued that the comparative analysis of the law and practice in other States... is... of limited importance.

112. The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life. The Court observes that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In the Court's view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard...

115. Although the power to retain fingerprints, cellular samples and DNA profiles of unconvicted persons has only existed in England and Wales since 2001, the Government argue that their retention has been shown to be indispensable in the fight against crime. Certainly, the statistical and other evidence, which was before the House of Lords and is included in the material supplied by the Government (see paragraph 92 above) appears impressive, indicating that DNA profiles that would have been previously destroyed were linked with crime-scene stains in a high number of cases.

116. The applicants, however, assert that the statistics are misleading, a view supported in the Nuffield Report. It is true, as pointed out by the applicants, that the figures do not reveal the extent to which this "link" with crime scenes resulted in convictions of the persons concerned or the number of convictions that were contingent on the retention of the samples of unconvicted persons. Nor do they demonstrate that the high number of successful matches with crime-scene stains was only made possible through indefinite retention of DNA records of all such persons. At the same time, in the majority of the specific cases quoted by the Government (see paragraph 93 above), the DNA records taken from the suspects produced successful matches only with earlier crime-scene stains retained on the data base. Yet such matches could have been made even in the absence of the present scheme, which permits the indefinite retention of DNA records of all suspected but unconvicted persons.

117... the Court accepts that the extension of the database has nonetheless contributed to the detection and prevention of crime.

118. The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.

119. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

121... The Court... reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data (see paragraph 67 above).

122. Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the Court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused's innocence may be voiced after his acquittal...

123. The Government argue that the power of retention applies to all fingerprints and samples taken from a person in connection with the investigation of an offence and does not depend on innocence or guilt. It is further submitted that the fingerprints and samples have been lawfully taken and that their retention is not related to the fact that they were originally suspected of committing a crime, the sole reason for their retention being to increase the size and, therefore, the use of the database in the identification of offenders in the future. The Court, however, finds this argument difficult to reconcile with the obligation imposed by section 64(3) of the PACE to destroy the fingerprints and samples of volunteers at their request, despite the similar value of the material in increasing the size and utility of the database. Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants' private data compared to that of other unconvicted people.

124. The Court further considers that the retention of the unconvicted persons' data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society... the Court considers that particular attention should be paid to the protection of juveniles from any detriment that may result from the retention by the authorities of their private data following acquittals of a criminal offence. The Court shares the view of the Nuffield Council as to the impact on young persons of the indefinite retention of their DNA material and notes the Council's concerns that the policies applied have led to the over-representation in the database of young persons and ethnic minorities, who have not been convicted of any crime (see paragraphs 38-40 above).

125. In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society...

126. Accordingly, there has been a violation of Article 8 of the Convention in the present case...

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that there has been a violation of Article 8 of the Convention;

2. Holds that it is not necessary to examine separately the complaint under Article 14 of the Convention;

3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, EUR 42,000 (forty two thousand euros) in respect of costs and expenses (inclusive of any VAT which may be chargeable to the applicants), to be converted into pounds sterling at the rate applicable at the date of settlement, less EUR 2,613.07 already paid to the applicants in respect of legal aid;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicants' claim for just satisfaction."

The decision should have significant implications for the UK in terms of the practice of retaining the DNA and fingerprints of suspects not charged or convicted of a criminal offence. It is interesting that court refers repeatedly to the Nuffield Council on Bioethics report, The forensic use of bioinformation: ethical issues, published in September 2007. That report, in addition to a number of others including the report of the Human Genetics Commission in July this year and Genewatch UK's report from 2006 have systematically deconstructed and undermined ministers' repeated and superficially impressive claims about the value of the DNA database in crime detection. Without accusing them of lying, the Court notes that the government's "statistical and other evidence" on the value of DNA and fingerprint retention "appears impressive" but chooses to accept the Nuffield Report's interpretation of that evidence rather than the government's, whilst still noting the practice of retention has made a contribution to crime detection. That contribution, according to the Court however, disproportionately trampled on the applicants privacy rights under Article 8 of the European Convention.

The other interesting aspect of the decision is the degree to which the Court emphasises the UK's total isolation from other member states of the Council of Europe, in relation to DNA retention practices. The UK (excluding Scotland) is the only member state that where "blanket and indiscriminate" indefinite retention of the DNA and fingerprints, "of any person of any age" suspected but not convicted of a criminal offence, takes place.

Essentially the decision is a blunt and damning indictment of UK practice of DNA data retention since 2001. The Home Secretary, Jacqui Smith is disappointed with the decision and according to a BBC report is planning to continue to facilitate police retention of the DNA of suspects not convicted of a crime. She said:

"The existing law will remain in place while we carefully consider the judgment."

The Home Office are setting up a committee to look into the implications of the decision. Well that's relatively straightforward - 17 of the top judges from all around Europe are unanimous that the UK, in England Wales and Northern Ireland, is in breach of the European Convention of Human Rights Article 8 and should stop the offending behaviour i.e. discontinue the blanket, indiscriminate and indefinite retention of the DNA and fingerprints, of any person of any age suspected but not convicted of any criminal offence.

Update: Douwe Korff has reminded me of the recent related issue paper by Thomas Hammarberg, the Council of Europe's Commissioner for Human Rights, which concluded:

"7. Conclusions
We are rapidly becoming a “Surveillance Society”. This is partly the result of general technical and societal developments, but these trends are strongly reinforced by measures taken in the fight against terrorism.
In the context of the fight against terrorism, this means individuals are at risk of being targeted for being suspected “extremists” or for being suspected of being “opposed to our constitutional legal order”, even if they have not (yet) committed any criminal (let alone terrorist) offence.
“Targets” of this kind are moreover increasingly selected through computer “profiles”. Even if some may be caught, there will always be relatively large numbers of “false negatives” - real terrorists who are not identified as such, and unacceptably high numbers of “false positives”: large numbers of innocent people who are subjected to surveillance, harassment, discrimination, arrest - or worse. Freedom is being given up without gaining security.
In addition, increasing use is made of non-criminal, yet effectively punitive, “administrative” measures against identified suspected “extremists” or new-type “enemies of the State”. This robs them of fundamental safeguards, both against the specific measures taken against them and, as groups, against such discrimination. It leads to alienation of the groups in question, and thus actually undermines security.
In the process, all of us are increasingly placed under general, mass surveillance, with data being captured on all our activities, on-line or in the “real” world. Such general surveillance raises serious democratic problems which are not answered by the repeated assertion that “those who have nothing to hide have nothing to fear.”
The response to these developments should be a re-assertion of the basic principles of the Rule of Law, as enshrined, in particular, in the European Convention on Human Rights, and as further elaborated in the case-law of the European Court of Human Rights and the European Court of Justice, as well as in European legal instruments directly or indirectly inspired by the Convention and such case-law, including in particular the still-pre-eminent Council of Europe recommendation on data protection in the police sector (Recommendation R(87)15 of the Committee of Ministers).
The basic principles are well-established, and indicate the way forward:
I. Under the European Convention on Human Rights, the interferences with fundamental rights inherent in the measures described in this paper must be justified by the state as being:

· in accordance with the law; · necessary in a democratic society:
o in the interests of national security, public safety or the economic well-being of the country; o for the prevention of crime or disorder; or o for the protection of the right and freedom of others;
· proportionate; and · non-discriminatory.

II. The applicable data protection principles are equally well-developed, in Council of Europe Convention No. 108, Committee of Ministers Recommendation R(87)15, the main EC directive on data protection (Directive 95/46/EC), and in the case-law of the ECHR and the ECJ. They require inter alia that:

· All processing of personal data for law enforcement and anti-terrorist purposes must be based on clear and specific, binding, published legal rules. · The collection of data on persons not suspected of involvement in a specific crime or of posing a threat, the collection of information through intrusive, secret means and the use of “profiling” techniques must be subject to a particularly strict “necessity” and “proportionality” test. · Factual and intelligence data, and data on different categories of data subjects should be clearly distinguished. · Access to police and secret service files should only be allowed on a case-by-case basis, for specified purposes and be under judicial control in the Member States. · There must be limits on the storing of old information and on the time for which new information can be retained. · The collection of data on individuals solely on the basis that they have a particular racial origin, particular religious convictions, sexual behaviour or political opinions or belong to particular movements or organisations which are not proscribed by law should be prohibited.

· Reliance by private or public bodies on computers to take decisions on individuals, without human input is fundamentally contrary to the requirement of respect for the human identity and should only be allowed exceptionally under strict safeguards.

· There must be strong safeguards established by law which ensure appropriate and effective supervision over the activities of the police and the secret services - also in the fight against terrorism. This supervision should be carried out by the judiciary and through parliamentary scrutiny. All personal data processing operations should be subject to close and effective supervision by independent and impartial data protection authorities.

III. In the fight against terrorism and organised crime, these principles should not be abandoned but, rather, re-asserted. Anti-terrorist “profiling” and EU cooperation on the basis of the “availability” principle as currently construed risk breaching these established standards. These policies and proposals should be reviewed to ensure that they comply with accepted European law, including the European Convention on Human Rights (as applied by the Strasbourg Court), CoE Convention 108 and CoE Recommendation R(87)15, and EC Directive 95/46/EC."