Sunday, February 1, 2009

DNA Testing, Right to Private and Family Life and Limitations on Rights

Extract from the European Court of Human Rights Decision:

Case of S. and Marper v. The United Kingdom


The case of S and Marper v United Kingdom considered whether the retention of DNA and fingerprints from innocent people is consistent with human rights law.

This case will be particularly informative for the interpretation and application of s 13 (privacy) and s 7 (limitations) of the Victorian Charter (Australia).


The first applicant, Mr S, was charged with attempted robbery at the age of eleven. His fingerprints and DNA samples were taken and he was subsequently acquitted.

The second applicant, Mr Marper, was arrested and charged with harassment of his partner. His fingerprints and DNA sample were taken. The charge was not pressed and the case was formally discontinued.

Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases,the police refused.


In making its decision, the Grand Chamber of the European Court of Human Rights considered the following

1. whether the retention by the authorities of the applicants’ fingerprints, DNA profiles and cellular samples constituted an interference in their private life; and

2. if so, whether the interference was: (a) in accordance with the law; (b) in pursuit of a legitimate aim; and (c) necessary in a democratic society.

The Grand Chamber decided that the retention of both cellular samples and DNA profiles constituted an interference with the right to respect for the private lives of the applicants within the meaning of art 8 of the European Convention on Human Rights. The mere storing of data relating to the private life of an individual amounts to an interference.

Further, the Grand Chamber found that the interference was not justified. In this regard, the

Grand Chamber stated:

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,fails to strike a fair balance between the competing public and private interests.

Accordingly, the retention constituted a disproportionate interference with the applicants’right to respect for private life and cannot be regarding as necessary in a democratic society.


A. Council of Europe texts

# The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). The Convention provides inter alia:

“Article 5 – Quality of data

Personal data undergoing automatic processing shall be: ...

b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;

c. adequate, relevant and not excessive in relation to the purposes for which they are stored;


e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.

Article 6 – Special categories of data

Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. (...)

Article 7 – Data security

Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.”

# Recommendation No. R(87)15 regulating the use of personal data in the police sector (adopted on 17 September 1987) states, inter alia:

“Principle 2 – Collection of data

2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation. ...

Principle 3 - Storage of data

3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law....

Principle 7 - Length of storage and updating of data

7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.

For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.”

# Recommendation No. R(92)1 on the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system (adopted on 10 February 1992) states, inter alia:

“3. Use of samples and information derived therefrom

Samples collected for DNA analysis and the information derived from such analysis for the purpose of the investigation and prosecution of criminal offences must not be used for other purposes. ...

Samples taken for DNA analysis and the information so derived may be needed for research and statistical purposes. Such uses are acceptable provided the identity of the individual cannot be ascertained. Names or other identifying references must therefore be removed prior to their use for these purposes.

4. Taking of samples for DNA analysis

The taking of samples for DNA analysis should only be carried out in circumstances determined by the domestic law; it being understood that in some states this may necessitate specific authorisation from a judicial authority...

8. Storage of samples and data

Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.

Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law.

Samples and other body tissues, or the information derived from them, may be stored for longer periods:

- when the person so requests; or

- when the sample cannot be attributed to an individual, for example when it is found at the scene of a crime;

Where the security of the state is involved, the domestic law of the member state may permit retention of the samples, the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence. In such cases strict storage periods should be defined by domestic law. ...”

# The Explanatory Memorandum to the Recommendation stated, as regards item 8:

“47. The working party was well aware that the drafting of Recommendation 8 was a delicate matter, involving different protected interests of a very difficult nature. It was necessary to strike the right balance between these interests. Both the European Convention on Human Rights and the Data Protection Convention provide exceptions for the interests of the suppression of criminal offences and the protection of the rights and freedoms of third parties. However, the exceptions are only allowed to the extent that they are compatible with what is necessary in a democratic society. ...

49. Since the primary aim of the collection of samples and the carrying out of DNA analysis on such samples is the identification of offenders and the exoneration of suspected offenders, the data should be deleted once persons have been cleared of suspicion. The issue then arises as to how long the DNA findings and the samples on which they were based can be stored in the case of a finding of guilt.

50. The general rule should be that the data are deleted when they are no longer necessary for the purposes for which they were collected and used. This would in general be the case when a final decision has been rendered as to the culpability of the offender. By 'final decision' the CAHBI thought that this would normally, under domestic law, refer to a judicial decision. However, the working party recognised that there was a need to set up data bases in certain cases and for specific categories of offences which could be considered to constitute circumstances warranting another solution, because of the seriousness of the offences. The working party came to this conclusion after a thorough analysis of the relevant provisions in the European Convention on Human Rights, the Data Protection Convention and other legal instruments drafted within the framework of the Council of Europe. In addition, the working party took into consideration that all member states keep a criminal record and that such record may be used for the purposes of the criminal justice system... It took into account that such an exception would be permissible under certain strict conditions:

- when there has been a conviction;

- when the conviction concerns a serious criminal offence against the life, integrity and security of a person;

- the storage period is limited strictly;

- the storage is defined and regulated by law;

- the storage is subject to control by Parliament or an independent supervisory body...”


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