ECHR decided against the UK DNA Database

By EDRi · December 17, 2008

(Article corrected on 18 December 2008 on DNA database figures and the Counter Terrorism Act 2008)

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On 4 December 2008, the European Court of Human Rights (ECHR) gave its
judgement in the Marper case related to the controversial National DNA
Database used by the UK Police for criminal investigations, stating the
retention of cellular samples, fingerprints and DNA profiles constitutes an
infringement of the right for private life as per Article 8 of the European
Convention on Human Rights.

The case was brought to court in 2004 by Michael Marper and a boy called “S”
who, in separate, unrelated cases, had been taken their DNA after having
been arrested. The charges were dropped in both cases but the UK police
refused to destroy the DNA samples of the two individuals on the basis of
the British law which allowed the retention of DNA and fingerprints.

ECHR based its decision on Article 8 of the European Convention on Human
Rights and decided that the indefinite retention by the UK Government and
Police of innocent people’s DNA and fingerprints was illegal. “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
disproportionate interference with the applicants’ right to respect for
private life and cannot be regarded as necessary in a democratic society.”

The court dismissed all arguments brought by the UK Government, stating that
“England, Wales and Northern Ireland appear to be the only jurisdictions
within the Council of Europe to allow the indefinite retention of
fingerprint and DNA material of any person of any age suspected of any
recordable offence”. One of the main concerns expressed by the court was
“the risk of stigmatisation, stemming from the fact that persons in the
position of the applicants, who have not been convicted of any offence and
are entitled to the presumption of innocence, are treated in the same way as
convicted persons,” the ruling adding that especially the retention of
children’s data following acquittal could be harmful, “given their special
situation and the importance of their development and integration in

Following this decision, the UK Government is expected to change its present
legislation which allows the police to retain samples of people who are not

According to reports, there more than 5 million samples presently stored
in UK DNA database, out of which between 573,639 to 857,366 are from people
with no criminal record. The creation of a DNA database has been questioned
by many people. The Information Commissioners Office made a statement
last year on this issue warning on the dangers of such a database: “There
are significant risks associated with creating a universal database: it
would be highly intrusive, and the more information collected about us, the
greater the risk of false matches and other mistakes. The potential for
technical and human error leading to serious consequences cannot be under

Shadow Home Secretary Dominic Grieve also warned on the dangers brought by
the fact that the database can be checked by EU member countries against
sensitive personal information. “There is a real risk that a
disproportionate number of innocent British citizens will be sucked into
foreign criminal investigations.”

(The House of Lords has passed an amendment to the Counter Terrorism Bill,
proposed on 4 November by Baroness Hanham that would force the Government
to show to people how they can have their samples removed from the database.)
Correction – This amendment was not adopted in the end by the UK Parliament. The act was adopted as the Counter Terrorism Act 2008.

One possible approach of the UK Government, which would be accepted by ECHR,
could be that of Scotland police. According to the Scottish Criminal
Procedure Act, an individual’s DNA samples and resulting profile must be
destroyed if the individual is not convicted or is granted an absolute
discharge. Biological samples and profiles may, however, be retained for
three years in case the respective person is suspected of certain sexual or
violent offences even if not convicted.

European Court of Human Rights – Grand Chamber Judgement – Case of S. and
Marper v. The United Kingdom (4.12.2008)

Innocent Britons ‘may be branded criminals abroad’ after Big Brother
databases agreement (15.12.2008)

S. and Michael Marper v. The United Kingdom (DNA Retention) (28.05.2008)

S. and Michael Marper v. The United Kingdom (DNA Retention)

DNA retention policy breaches human rights, rules ECHR (4.12.2008)

Lords demand amendment to help the innocent get DNA off database (6.11.2008)

Counter Terrorism Act 2008

Don’t delay: Delete your DNA today(17.12.2008)

EDRi-gram: UK DNA database errors raise concerns (5.07.2007)