(Grand Chamber) The applicants complained that on being arrested on suspicion of offences, samples of their DNA had been taken, but then despite being released without conviction, the samples had retained on the Police database.
Held: (Unanimous) The retention was unlawful. Though other member states retained some DNA samples in certain conditions, the UK was the only signatory state 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. The concept of ‘private life’ is a broad term not susceptible to exhaustive definition. The court had previously recognised the difference between retention of fingerprint images and personal samples of DNA, and ‘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. Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today . . 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. ‘ Even as to fingerprints, their retention 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. It was therefore necessary to justify their retention. There were legitimate concerns about the retention of cellular samples, where for example. It was used for racial categorisation.
The government figures were misleading. The retention had contributed to detection of crime but not to extent claimed. This was an indiscriminate and open-ended retention regime. 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.
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.
‘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; 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.’ and ‘it is as essential, in this context, as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness ‘
J-P Costa, President, and Judges C. Rozakis, Sir Nicolas Bratza, P. Lorenzen, F. Tulkens, J. Casadevall, G. Bonello, C. Birsan, N. Vajic, A. Kovler, S. Pavlovschi, E. Myjer, D. Jociene, J. Sikuta, M. Villiger, P. Hirvela and L. Bianku
30562/04, [2008] ECHR 1581, Times 08-Dec-2008, (2008) 158 NLJ 1755, (2009) 48 EHRR 50, 25 BHRC 557, [2009] Crim LR 355
Bailii
European Convention on Human Rights 8 14, Police and Criminal Evidence Act 1984 64(1A), Data Protection Act 1998, UN Convention on the Rights of the Child of 20 November 1989 40
Human Rights
Citing:
At First Instance – Regina (S) v Chief Constable of South Yorkshire; Regina (Marper) v Same Admn 22-Mar-2002
The police authority took samples of DNA and fingerprints from the claimants whilst under arrest. After their cases had been dismissed or failed, they requested destruction of the samples and records, but this was refused.
Held: There was no . .
At Court of Appeal – Regina (on the application of S) v Chief Constable of South Yorkshire Police, Regina (Marper) v Same CA 12-Sep-2002
The applicants had been charged with offences, but later acquitted. On arrest they had had DNA samples and fingerprints taken, and the details added to the national DNA database. The police refused to remove the records after the acquittals.
At House of Lords – S, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
See Also – Marper v United Kingdom; S v United Kingdom ECHR 27-Feb-2008
Grand Chamber – Press Release – The applicant complained of the retention by the police of DNA and fingerprint records – The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in . .
Cited – Attorney General’s Reference (No 3 of 1999) (Lynn) HL 15-Dec-2000
A DNA sample had been wrongfully retained after the suspect had been acquitted, and the sample had been used in a later investigation to identify him. A subsequent sample had been taken, and the result of that second test had been used as evidence . .
Cited – Regina v RC 28-Oct-2005
(Supreme Court of Canada) The court considered the retention of 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 . .
Cited – South Yorkshire and North Wales Police v The Information Commissioner IT 12-Oct-2005
Applicants challenged the decision of the police forces not to destroy on their request personal information held about them. . .
Cited – Leander v Sweden ECHR 26-Mar-1987
Mr Leander had been refused employment at a museum located on a naval base, having been assessed as a security risk on the basis of information stored on a register maintained by State security services that had not been disclosed him. Mr Leander . .
Cited – Burghartz v Switzerland ECHR 22-Feb-1994
It was sex discrimination to prevent a husband using his and his wife’s surnames, but not to prevent the wife doing the same. The use of name is a means of personal identity and of linking it to a family.
Friedl v Austria ECHR 31-Jan-1995
The Commission distinguished between the taking and keeping of photographs without identifying the subjects, and police questioning in order to establish identity and the recording of these personal data; the former was not an interference with . .
Cited – Z v Finland ECHR 25-Feb-1997
A defendant had appealed against his conviction for manslaughter and related offences by deliberately subjecting women to the risk of being infected by him with HIV virus. The applicant, Z, had been married to the defendant, and infected by him with . .
Followed – Van der Velden v The Netherlands ECHR 7-Dec-2006
The Court distinguished between the retention of fingerprints and the retention of cellular samples and DNA profiles in view of the stronger potential for future use of the personal information contained in the latter. It was appropriate to examine . .
Cited – Amann v Switzerland ECHR 16-Feb-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 with regard to interception of telephone call; Violation of Art. 8 with regard to creation and storing of information card; Preliminary objection . .
Cited – Sciacca v Italy ECHR 11-Jan-2005
The court was asked whether the applicant’s rights under Article 8 had been infringed by the release to the press of an identity photograph taken of her by the Italian Revenue Police while she was under arrest and investigation for various criminal . .
Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001
The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .
Cited – Unal Tekeli v Turkey ECHR 16-Nov-2004
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected (victim, six-month period);Violation of Art. 14+8; Not necessary to examine Art.8; Non-pecuniary damage – finding of violation . .
Cited – YF v Turkey ECHR 22-Jul-2003
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8 ; Non-pecuniary damage – financial award ; Costs and expenses partial award – Convention proceedings . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Peck v The United Kingdom ECHR 28-Jan-2003
peck_ukECHR2003
The claimant had been filmed by CCTV. He had, after attempting suicide, left home with a knife, been arrested by the police and disarmed, but then sent home without charge. The CCTV film was used on several occasions to advertise the effectiveness . .
Cited – McVeigh, O’Neill and Evans v United Kingdom ECHR 1981
(Commission) The Commission was asked whether the retention of fingerprints or samples amounts to an interference with the right to respect for private life.
Held: A distinction was made between the taking of fingerprints, photographs and . .
Cited – Malone v The United Kingdom ECHR 2-Aug-1984
The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in ‘accordance with law’. . .
Cited – Kinnunen v Finland ECHR 15-May-1996
(Commission) In a criminal case of fraud, the claimant said the retention of his photographs and fingerprints by the police after his acquittal, infringed his right to private life. The Commission rejected the complaint, but noted that the . .
Cited – Rotaru v Romania ECHR 4-May-2000
Grand Chamber – The applicant, a lawyer, complained of a violation of his right to respect for his private life on account of the use against him by the Romanian Intelligence Service of a file which contained information about his conviction for . .
Cited – Coster v The United Kingdom ECHR 18-Jan-2001
While it is for the national authorities to make the initial assessment of what is necessary and proportionate in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity . .
Cited – Hasan and Chaush v Bulgaria ECHR 26-Oct-2000
The Grand Chamber considered executive interference in the appointment of the Chief Mufti of the Bulgarian Muslims: ‘Where the organisation of the religious community is at issue, Article 9 must be interpreted in the light of Article 11 of the . .
Cited – PG and JH v The United Kingdom ECHR 25-Sep-2001
The use of covert listening devices within a police station was an infringement of the right to privacy, since there was no system of law regulating such practices. That need not affect the right to a fair trial. The prosecution had a duty to . .
Cited – Connors v The United Kingdom ECHR 27-May-2004
The applicant gypsies had initially been permitted to locate their caravan on a piece of land owned by a local authority, but their right of occupation was brought to an end because the local authority considered that they were committing a . .
Cited – Evans v United Kingdom ECHR 10-Apr-2007
The claimant said that the English law on assisted conception infringed her right to family life. She had began treatment with her partner, and was given a cycle of in-vitro fertilisation before her cancerous condition required removal of her . .
Cited – Kruslin v France ECHR 24-Apr-1990
Hudoc The claimant complained of the interception of her telephone calls.
The court discussed the role of case law in both civil law and common law systems. . .
Cited – Weber and Saravia v Germany ECHR 29-Jun-2006
(Admissibility) ‘The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the . .
Cited – Liberty And Others v United Kingdom ECHR 1-Jul-2008
Liberty complained that the interception of their communications under the 1985 Act between 1990 and 1997 had infringed their article 8 rights, since the Act was insufficiently clear.
Held: The infringements were established. The mere . .
Cited – The Association For European Integration And Human Rights And Ekimdzhiev v Bulgaria ECHR 28-Jun-2007
. .
Cited – Dickson and Another v United Kingdom ECHR 15-Dec-2007
(Grand Chamber) The complainants were husband and wife. They had been married whilst the husband served a sentence of life imprisonment. They had been refused suport for artificial insemination treatment.
Held: The claim succeeded. The refusal . .
Cited – Rushiti v Austria ECHR 21-Mar-2000
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: ‘In any case, the Court is not convinced by the Government’s . .
Press Release – Marper v United Kingdom; S v United Kingdom ECHR 27-Feb-2008
Grand Chamber – Press Release – The applicant complained of the retention by the police of DNA and fingerprint records – The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in . .
Legal Summary – S and Marper v The United Kingdom, (Legal Summary) ECHR 4-Dec-2008
Respect for private life
Retention of fingerprints and DNA information in cases where defendant in criminal proceedings is acquitted or discharged: violation . .
Cited by:
Cited – Wood v Commissioner of Police for the Metropolis CA 21-May-2009
The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – F and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
Cited – London Borough of Lewisham v D and Others FD 29-Mar-2010
Lewisham_dFD10
The local authority was investigating allegations involving the family history of children in their care. They sought disclosure by the respondent police authority of the results DNA comparison tests to assist their investigations. The court . .
Cited – Regina (GC) v Commissioner of Police of the Metropolis; Regina (C) v Commissioner of Police of the Metropolis Admn 16-Jul-2010
The claimants had each had biometric samples taken during police investigations, and now sought judicial review of the decision of the respondent not to remove those details from the Police National Computer, saying that in accordance with the . .
Cited – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
Cited – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
Cited – X and Another v Z (Children) and Another CA 5-Feb-2015
The Court was asked as to the circumstances in which DNA profiles obtained by the police in exercise of their criminal law enforcement functions can, without the consent of the data subject, be put to uses which are remote from the field of criminal . .
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – Re C (A Child) FC 29-Sep-2015
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
Cited – Gaughran, Re Judicial Review QBNI 13-Nov-2012
The claimant sought judicial review of the refusal by the Police Service of Northern Ireland to remove records of his fingerprint, a photograph and DNA sample and profiles which had been collected when he was stopped on suspicion of driving wih . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – AB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Criminal Practice, Police, Information
Leading Case
Updated: 02 November 2021; Ref: scu.248413