Original URL: http://www.theregister.co.uk/2008/12/04/dna_fingerprints_echr/

Human rights court rules UK DNA grab illegal

Jacqui Smith: Law to remain while judgment 'carefully considered'

By Christopher Williams

Posted in Policy, 4th December 2008 11:02 GMT

Updated The European Court of Human Rights has ruled that it is illegal for the government to retain DNA profiles and fingerprints belonging to two men never convicted of any crime.

The landmark decision could mean the more than 570,000 DNA profiles in the National DNA Database belonging to innocent individuals will have to be deleted. Police in England, Wales and Northern Ireland currently have powers to take DNA and fingerprints from everyone they arrest.

The case was heard by the 17 judges of the Grand Chamber of the European Court of Human Rights in Strasbourg. They unanimously found that UK DNA and fingerprint retention policies infringe individuals' rights to privacy.

Home secretary Jacqui Smith said: "The existing law will remain in place while we carefully consider the judgement." In in April the Home Office committed itself to a consultation on DNA and fingerprint retention powers following today's ruling, regardless of the outcome.

The challenge was brought by two men from Sheffield. DNA was taken from Michael Marper, 45, when he was charged with harassing his estranged partner in 2001. The charges were dropped when the couple reconciled. The second man, a teenager identified as "S", was charged with attempted robbery, also in 2001, but was acquitted.

The pair took their case to Europe after the House of Lords, the highest court in the UK, rejected their arguments in 2004. In November this year, the Lords voted that National DNA Database rules should be change to make it easier for innocent people to demand their profile is deleted.

Smith said: "DNA and fingerprinting is vital to the fight against crime, providing the police with more than 3,500 matches a month, and I am disappointed by the European Court of Human Rights' decision. The Government mounted a robust defence before the Court and I strongly believe DNA and fingerprints play an invaluable role in fighting crime and bringing people to justice."

In its ruling, the Grand Chamber said retention of innocent people's DNA profile was a violation of Article 8 of the European Convention on Human Rights. Article 8 states: "Everyone has the right for his private and family life, his home and his correspondence." It said it was not necessary to consider Marper and "S'" complaint under Article 14, which prohibits discrimination.

The ruling said that the UK government should "implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private life".

The judgment is here. The 17 judges wrote: "The Court was struck by the blanket and indiscriminate nature of the power of retention in England and Wales. In particular, the data in question could 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; the retention was not time-limited; and there existed only limited possibilities for an acquitted individual to have the data removed from the nationwide database or to have the materials destroyed."

They were particularly concerned about the risk of stigmatisation caused by treating innocent people the same as convicted criminals.

Phil Booth, national coordinator of privacy campaign group No2ID, said the law should be changed: "This is a victory for liberty and privacy. Though these judgements are always complicated and slow in coming, it is a vindication of what privacy campaigners have said all along.

"The principle that we need to follow is simple: when charges are dropped, suspect samples are destroyed - no charge, no DNA." ®