The Marper case

The case of S. and Marper v. the United Kingdom was about whether the retention of DNA and fingerprints from innocent people is consistent with human rights law. The case was heard in the Grand Camber of the European Court of Human Rights (ECtHR) in Strasbourg on 27th February 2008. The judgment was announced on Thursday 4th December 2008. The Court decided that the retention of S. and Marper's DNA breaches human rights law. The Government reported to the Committee of Ministers, which oversees the Court, in March 2009, stating that it would consult on new regulations to implement the judgment. It is due to report to the Council of Ministers again in September 2009.

Background

The case was brought by the Sheffield-based legal firm Howells, with barristers from Brick Court and Doughty Street Chambers. Information about the case is here. The case involved two people who went to court to get their DNA destroyed, and their records removed from the relevant databases. One was a juvenile (who cannot be named for legal reasons) who was charged with attempted robbery but acquitted. He was aged 11 when he was arrested. The other was an adult, Michael Marper, who was charged with harassment but whose case did not go to court as the charges were dropped.

GeneWatch UK provided expert evidence on behalf of S. and Marper to the European Court.

The judgment

The Court found that there had been a violation of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, stating:

"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"

Key points in the judgment are:

  • 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.
  • The DNA profiles' capacity to provide a means of identifying genetic relationships is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned.
  • In view of the foregoing, 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 of the Convention.
  • The retention of fingerprints also constitutes an interference with the right to respect for private life.
  • Other countries 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.
  • Any State claiming a pioneer role in the development of new technologies bears a special responsibility for striking the right balance in this regard.
  • The Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales.
  • Weighty reasons would have to be put forward by the Government before the Court would regard as justified such a difference in treatment of the applicants' private data compared to that of other unconvicted people.
  • The retention of the unconvicted persons' data may be especially harmful in the case of minors, given their special situation and the importance of their development and integration in society.

What happens now?

S. and Marper have had their DNA destroyed and their records removed from the DNA and fingerprint databases. However, the ECtHR judgment will be taken into account in future judgments by courts anywhere in Europe, when they decide whether or not retention of someone's DNA and fingerprints is lawful. This means that the law in England, Wales and Northern Ireland will have to be changed to be consistent with the judgment and destroy the DNA and delete the records of people who are acquitted or have had charges against them dropped. The details of how the judgment will be implemented have still to be worked out, but Chief Constables are legally responsible for any information that they hold about you, including your DNA.

If your DNA is on the database you should now write to the Chief Constable of the police force that arrested you. Ask for them to remove your DNA, fingerprint and police records, and destroy your DNA sample, in the light of the judgment of the European Court of Human Rights. The judgment applies to anyone who has had charges dropped or been acquitted of a crime. But other cases (e.g. cautions, final warnings, spent minor convictions) may be arguable. You can find a list of UK police forces and their websites here. If possible, send a copy of the letter to your MP. Please send a copy of any reply to GeneWatch.

In December 2008, the Home Secretary made a speech in which she said there would be a consultation about what the Government's new policy should be in 2009 and she has also written to the Joint Committee on Human Rights. You can find these documents below.

On 20th January 2009, the Lord Chancellor and Secretary of State for Justice, Jack Straw, told the Joint Committee on Human Rights, "I believe - and I read the [Marper] judgment through very carefully - that there will be a way through and that it is possible to find a consensus which meets the will of both Houses of Parliament and establishes a more satisfactory system.". However, at the same time Straw was trying to get a new law adopted which would have allowed DNA and genetic information collected by the NHS to be shared routinely with the police (this plan was later dropped as a result of widespread protest).

At the end of February 2009, the Government submitted an amendment to the Policing and Crime Bill, which it claimed would implement the judgment. The amendment left it to the Home Secretary to decide whose DNA should be retained via proposed new regulations, which would not have received proper parliamentary scrutiny. The amendment was widely criticised by MPs because it would not have allowed them to have a say about whose records should be kept. It was dropped on 19th October 2009, when the Government announced that new proposals would be included in a bill to be announced in the Queen's speech on 18th November 2009.

In February, the Liberal Democrats launched their Freedom Bill, and in April the Conservatives wrote to the Home Secretary questioning the delay in implementing the Marper judgment. Both parties support new legislation similar to that already adopted in Scotland. Most innocent people would then be removed from the database automatically if they were acquitted or charges dropped. A small number of individuals prosecuted for serious violent or sexual offences could have their DNA and fingerprint records retained on a temporary basis, and special safeguards would apply to children.

In May 2009, the Government launched a consultation on its proposals for DNA and fingerprints in the light of the Marper judgment. The proposals in the consultation have been widely criticised. The outcome of the consultation will be announced in the autumn.

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