S. and Marper v. The United Kingdom
Encyclopedia
S and Marper v United Kingdom [2008] ECHR 1581 is a case decided by the European Court of Human Rights
which held that holding DNA
samples of individuals arrested but who are later acquitted or have the charges against them dropped is a violation of the right to privacy under the European Convention on Human Rights
.
has had a DNA
sample taken and stored as a digital profile in the National DNA Database. Even if the individual was never charged, if criminal proceedings were discontinued, or if the person was later acquitted of any crime, their DNA profile could nevertheless be kept permanently on record. The majority of the Council of Europe
member states allow the compulsory taking of fingerprints and DNA samples in the context of criminal proceedings; however the United Kingdom (specifically, England, Wales and Northern Ireland) was the only member state that expressly permitted the systematic and indefinite retention of such DNA profiles. In contrast, DNA samples taken in Scotland when individuals are arrested must be destroyed if the individual is not charged or convicted.
The case involved two claimants from Sheffield
, England
: Mr. S. and Michael Marper. Mr S. was arrested on 19 January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. Michael Marper was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. The charge was not pressed because Marper and his partner became reconciled before a pretrial review had taken place.
, Court of Appeal and High Court
. Both claimants had asked the Police Chief Constable for samples of their DNA that had been taken to be destroyed. The Administrative Division of the High Court refused an application for judicial review in 2002 of the decision not to destroy the fingerprints and samples, and this decision was in turn upheld by the Court of Appeal in 2003. That judgment noted that the Police Chief Constable did retain the power to destroy samples in the rare instance in which he was completely satisfied that the individual was free from all suspicion whatsoever, and when the retention of samples had enabled information to be used for the legitimate purpose of combating crime.
On appeal to the House of Lords in 2004, Lord Steyn also observed the considerable value of retained fingerprints and samples, and commented on the Criminal Justice and Police Act 2001, in that it had been enacted to replace the previous law which had provided that DNA samples could be destroyed following the acquittal of an accused. However, in Baroness Hale’s observation, later mentioned by the European Court of Human Rights judgment, retention of both fingerprint and DNA data constituted an interference by the State with a person's right to respect for his private life which attracted the protection of Article 8 of the European Convention on Human Rights, and therefore required justification by the state.
and Privacy International
were granted permission to file third-party submissions and submitted scientific evidence on the private nature of genetic material and information contained in DNA samples. Liberty stressed that general principles of Europe
an human rights law dictated that interference by a member state with an individual's rights under the Convention must be “necessary in a democratic society” and have a legitimate aim to answer a “pressing social need"; even then an identified interference must be proportionate and remains subject to review by the Court (Coster v United Kingdom (2001) 33 EHRR 479)).
The applicants stressed that the nature of DNA samples, which included a myriad highly personal data pertaining to an individual’s unique identity, susceptibility to certain medical conditions and was linked to genetic information of their relatives, meant that not only the taking of the data, but its storage, retention and constant automatic corroboration against other samples taken from current criminal investigations, caused them to suffer unwanted stigma and adverse psychological consequences. This was especially so in the case of S, as he was a child at the time of having his samples taken and relied on Article 40 of the UN Convention on the Rights of the Child of 1989, which states that it is the right of every child alleged to have infringed a penal law to be treated in a manner consistent with the promotion of the child’s dignity and worth, reinforcing the respect for the child’s human rights and fundamental freedoms.
In response, the United Kingdom submitted that the use of the DNA samples was permitted under the Police and Criminal Evidence Act 1984 and did not fall under the scope of Article 8 of the Convention. According to the United Kingdom's government, retention of the data did not impair the physical or psychological integrity of a person, restrict personal development, inhibit ability to establish personal relationships, or the right of self-determination. The DNA profile was merely a sequence of numbers which provided a means of identifying a person against bodily tissue and was not materially intrusive; the retention of data was a legitimate aim because it assisted in the identification of future offenders.
, had provided an example of a proportionate, more rational approach in regard to DNA retention, in that samples were to be destroyed if an individual was not convicted or granted an absolute discharge; an exemption however exists for the authorities to retain samples if the individual is suspected of certain sexual or violent offences (Retention Guidelines for Nominal Records on the Police National Computer 2006).
Through this ruling, the European Court of Human Rights has further developed its body of jurisprudence on what measures are likely to fall outside a state’s margin of appreciation. The Court determined that where there is no consensus between member states as to how important a matter at stake is, the margin ought to be wider, however as the facts in this instance involved the interference with intimate details of utmost importance to the individual, the margin allowed to the state was narrow and the United Kingdom had not struck the right balance.
announced a consultation
on how to comply with the ruling. The government proposed to continue retaining indefinitely the DNA profiles of anyone convicted of any recordable offence
, but to remove other profiles from the database after a number of years. The practice of taking DNA profiles upon arrest is not affected by the decision - for adults arrested but not actually convicted of any crime, it is proposed that their profiles will deleted from the database after 6 years, except for those whose arrest was in connection with a serious violent or sexual crime; their profiles will be stored for 12 years before deletion. Young people arrested but not convicted will have their profiles removed when they turn 18 years of age, as will youths convicted of some less serious offences.
As of January 2011, this consultation remains unimplemented. The Northern Irish High Court has ruled that the regulations Marper declared breached article 8 should be followed despite the Marper decision. They said it was up to the government to change the law. This decision has been criticised, particularly since it was open to the court to declare the blanket DNA retention policy incompatible with the European Convention of Human Rights.
In February 2011 the government announced the Protection of Freedoms Bill to limit the scope of the DNA database and comply with the Marper ruling. Under the new scheme the DNA profiles of those arrested or charged with a minor offence would be destroyed if they are not convicted. The vast majority of the one million people on the DNA database who have been arrested but not convicted of a crime would be removed from it within months of the bill becoming law.
On 18 May 2011 the UK Supreme Court ruled that the ACPO guidelines allowing indefinite retention of DNA profiles were unlawful, in line with the ECHR ruling. However given that Parliament was already legislating on the issue they decided that no further action should be taken.
According to The Independent on 27 July 2011, the UK government "has indicated that destroying the DNA of the innocent would be impossible because the records are mixed up in batches alongside the DNA of the guilty." The "Home Office minister James Brokenshire has revealed that these profiles will be retained by forensic science laboratories. The retained samples will be anonymised."
European Court of Human Rights
The European Court of Human Rights in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or...
which held that holding DNA
DNA
Deoxyribonucleic acid is a nucleic acid that contains the genetic instructions used in the development and functioning of all known living organisms . The DNA segments that carry this genetic information are called genes, but other DNA sequences have structural purposes, or are involved in...
samples of individuals arrested but who are later acquitted or have the charges against them dropped is a violation of the right to privacy under the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
.
Facts
In England, Wales and Northern Ireland, since 2004, any individual arrested for any recordable offenceRecordable offence
A recordable offence is any offence under United Kingdom law where the police must keep records of convictions and offenders on the Police National Computer.A 'crime recordable offence' should not be confused with a 'crime reportable offence'....
has had a DNA
DNA
Deoxyribonucleic acid is a nucleic acid that contains the genetic instructions used in the development and functioning of all known living organisms . The DNA segments that carry this genetic information are called genes, but other DNA sequences have structural purposes, or are involved in...
sample taken and stored as a digital profile in the National DNA Database. Even if the individual was never charged, if criminal proceedings were discontinued, or if the person was later acquitted of any crime, their DNA profile could nevertheless be kept permanently on record. The majority of the Council of Europe
Council of Europe
The Council of Europe is an international organisation promoting co-operation between all countries of Europe in the areas of legal standards, human rights, democratic development, the rule of law and cultural co-operation...
member states allow the compulsory taking of fingerprints and DNA samples in the context of criminal proceedings; however the United Kingdom (specifically, England, Wales and Northern Ireland) was the only member state that expressly permitted the systematic and indefinite retention of such DNA profiles. In contrast, DNA samples taken in Scotland when individuals are arrested must be destroyed if the individual is not charged or convicted.
The case involved two claimants from Sheffield
Sheffield
Sheffield is a city and metropolitan borough of South Yorkshire, England. Its name derives from the River Sheaf, which runs through the city. Historically a part of the West Riding of Yorkshire, and with some of its southern suburbs annexed from Derbyshire, the city has grown from its largely...
, England
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
: Mr. S. and Michael Marper. Mr S. was arrested on 19 January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples were taken. He was acquitted on 14 June 2001. Michael Marper was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. The charge was not pressed because Marper and his partner became reconciled before a pretrial review had taken place.
Procedural history
The decision of the European Court of Human Rights overturned judgments favourable to the government from the United Kingdom’s House of LordsHouse of Lords
The House of Lords is the upper house of the Parliament of the United Kingdom. Like the House of Commons, it meets in the Palace of Westminster....
, Court of Appeal and High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
. Both claimants had asked the Police Chief Constable for samples of their DNA that had been taken to be destroyed. The Administrative Division of the High Court refused an application for judicial review in 2002 of the decision not to destroy the fingerprints and samples, and this decision was in turn upheld by the Court of Appeal in 2003. That judgment noted that the Police Chief Constable did retain the power to destroy samples in the rare instance in which he was completely satisfied that the individual was free from all suspicion whatsoever, and when the retention of samples had enabled information to be used for the legitimate purpose of combating crime.
On appeal to the House of Lords in 2004, Lord Steyn also observed the considerable value of retained fingerprints and samples, and commented on the Criminal Justice and Police Act 2001, in that it had been enacted to replace the previous law which had provided that DNA samples could be destroyed following the acquittal of an accused. However, in Baroness Hale’s observation, later mentioned by the European Court of Human Rights judgment, retention of both fingerprint and DNA data constituted an interference by the State with a person's right to respect for his private life which attracted the protection of Article 8 of the European Convention on Human Rights, and therefore required justification by the state.
Submissions
When the matter was before the European Court of Human Rights' Grand Chamber, the non-governmental organizations LibertyLiberty (pressure group)
Liberty is a pressure group based in the United Kingdom. Its formal name is the National Council for Civil Liberties . Founded in 1934 by Ronald Kidd and Sylvia Crowther-Smith , the group campaigns to protect civil liberties and promote human rights...
and Privacy International
Privacy International
Privacy International is a UK-based non-profit organisation formed in 1990, "as a watchdog on surveillance and privacy invasions by governments and corporations." PI has organised campaigns and initiatives in more than fifty countries and is based in London, UK.-Formation, background and...
were granted permission to file third-party submissions and submitted scientific evidence on the private nature of genetic material and information contained in DNA samples. Liberty stressed that general principles of Europe
Europe
Europe is, by convention, one of the world's seven continents. Comprising the westernmost peninsula of Eurasia, Europe is generally 'divided' from Asia to its east by the watershed divides of the Ural and Caucasus Mountains, the Ural River, the Caspian and Black Seas, and the waterways connecting...
an human rights law dictated that interference by a member state with an individual's rights under the Convention must be “necessary in a democratic society” and have a legitimate aim to answer a “pressing social need"; even then an identified interference must be proportionate and remains subject to review by the Court (Coster v United Kingdom (2001) 33 EHRR 479)).
The applicants stressed that the nature of DNA samples, which included a myriad highly personal data pertaining to an individual’s unique identity, susceptibility to certain medical conditions and was linked to genetic information of their relatives, meant that not only the taking of the data, but its storage, retention and constant automatic corroboration against other samples taken from current criminal investigations, caused them to suffer unwanted stigma and adverse psychological consequences. This was especially so in the case of S, as he was a child at the time of having his samples taken and relied on Article 40 of the UN Convention on the Rights of the Child of 1989, which states that it is the right of every child alleged to have infringed a penal law to be treated in a manner consistent with the promotion of the child’s dignity and worth, reinforcing the respect for the child’s human rights and fundamental freedoms.
In response, the United Kingdom submitted that the use of the DNA samples was permitted under the Police and Criminal Evidence Act 1984 and did not fall under the scope of Article 8 of the Convention. According to the United Kingdom's government, retention of the data did not impair the physical or psychological integrity of a person, restrict personal development, inhibit ability to establish personal relationships, or the right of self-determination. The DNA profile was merely a sequence of numbers which provided a means of identifying a person against bodily tissue and was not materially intrusive; the retention of data was a legitimate aim because it assisted in the identification of future offenders.
Judgment
In a unanimous verdict, the seventeen-judge bench held that there had been a violation of Article 8 and awarded €42,000 to each of the applicants. The Court did therefore not go on to consider whether the retention of DNA was also a breach of Article 14 (prohibition of discrimination) as the applicants had also argued that they had suffered detrimental treatment on the basis of an acquired status. Notably, another part of the United Kingdom, namely ScotlandScotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
, had provided an example of a proportionate, more rational approach in regard to DNA retention, in that samples were to be destroyed if an individual was not convicted or granted an absolute discharge; an exemption however exists for the authorities to retain samples if the individual is suspected of certain sexual or violent offences (Retention Guidelines for Nominal Records on the Police National Computer 2006).
Through this ruling, the European Court of Human Rights has further developed its body of jurisprudence on what measures are likely to fall outside a state’s margin of appreciation. The Court determined that where there is no consensus between member states as to how important a matter at stake is, the margin ought to be wider, however as the facts in this instance involved the interference with intimate details of utmost importance to the individual, the margin allowed to the state was narrow and the United Kingdom had not struck the right balance.
Significance
In May 2009, nearly 6 months after the court decision, the Home OfficeHome Office
The Home Office is the United Kingdom government department responsible for immigration control, security, and order. As such it is responsible for the police, UK Border Agency, and the Security Service . It is also in charge of government policy on security-related issues such as drugs,...
announced a consultation
Public consultation
Public consultation, or simply consultation, is a regulatory process by which the public's input on matters affecting them is sought. Its main goals are in improving the efficiency, transparency and public involvement in large-scale projects or laws and policies...
on how to comply with the ruling. The government proposed to continue retaining indefinitely the DNA profiles of anyone convicted of any recordable offence
Recordable offence
A recordable offence is any offence under United Kingdom law where the police must keep records of convictions and offenders on the Police National Computer.A 'crime recordable offence' should not be confused with a 'crime reportable offence'....
, but to remove other profiles from the database after a number of years. The practice of taking DNA profiles upon arrest is not affected by the decision - for adults arrested but not actually convicted of any crime, it is proposed that their profiles will deleted from the database after 6 years, except for those whose arrest was in connection with a serious violent or sexual crime; their profiles will be stored for 12 years before deletion. Young people arrested but not convicted will have their profiles removed when they turn 18 years of age, as will youths convicted of some less serious offences.
As of January 2011, this consultation remains unimplemented. The Northern Irish High Court has ruled that the regulations Marper declared breached article 8 should be followed despite the Marper decision. They said it was up to the government to change the law. This decision has been criticised, particularly since it was open to the court to declare the blanket DNA retention policy incompatible with the European Convention of Human Rights.
In February 2011 the government announced the Protection of Freedoms Bill to limit the scope of the DNA database and comply with the Marper ruling. Under the new scheme the DNA profiles of those arrested or charged with a minor offence would be destroyed if they are not convicted. The vast majority of the one million people on the DNA database who have been arrested but not convicted of a crime would be removed from it within months of the bill becoming law.
On 18 May 2011 the UK Supreme Court ruled that the ACPO guidelines allowing indefinite retention of DNA profiles were unlawful, in line with the ECHR ruling. However given that Parliament was already legislating on the issue they decided that no further action should be taken.
According to The Independent on 27 July 2011, the UK government "has indicated that destroying the DNA of the innocent would be impossible because the records are mixed up in batches alongside the DNA of the guilty." The "Home Office minister James Brokenshire has revealed that these profiles will be retained by forensic science laboratories. The retained samples will be anonymised."