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 Chamber 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 breached human rights law.


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?

In April 2010, the Crime and Security Act was adopted in response to the Marper judgment. However, due to the change in government in May 2010, it will not be implemented. Instead, the Coalition Government proposed a new Protection of Freedoms Bill to bring the law in England and Wales into line with Scotland. This was finally adopted in May 2012 as the Protection of Freedoms Act and will be implemented by the end of 2013.

In May 2011, the Supreme Court made a declaration that that old Association of Chief Police Officer (ACPO) guidelines on the retention of DNA, fingerprints and Police National Computer (PNC) records are unlawful because they are incompatible with the European Convention on Human Rights.

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