UK Liberty

S and Marper win DNA battle

Posted in database state, law and order by ukliberty on December 4, 2008

Well, unless the Government appeals of course.

But, David Mery says, “The judgment of the Grand Chamber is final (article 44 in Protocol No 11) and the UK by being a signatory of the European Convention of Human Rights (ECHR) undertakes to abide by the final judgment (article 46 in Protocol No 11).”

I sit corrected.

This case, by the way, has been ongoing for seven, yes 7, years, since the two men originally requested their samples to be removed from the database. 

The BBC:

Two British men should not have had their DNA and fingerprints retained by police, the European Court of Human Rights has ruled.

The men’s information was held by South Yorkshire Police, although neither was convicted of any offence.

The judgement could have major implications on how DNA records are stored in the UK’s national database.

The judges said keeping the information “could not be regarded as necessary in a democratic society”.

The database may now have to be scaled back following the unanimous judgement by 17 senior judges from across Europe.

Under present laws, the DNA profiles of everyone arrested for a recordable offence in England, Wales and Northern Ireland are kept on the database, regardless of whether they are charged or convicted.

The details of about 4.5m people are held and one in five of them does not have a current criminal record.

Both men were awarded £36,400 (42,000 Euros) in costs.

The judges ruled the retention of the men’s DNA “failed to strike a fair balance between the competing public and private interests,” and that the UK government “had overstepped any acceptable margin of appreciation in this regard”.

The court also ruled “the retention in question constituted a disproportionate interference with the applicants’ right to respect for private life and could not be regarded as necessary in a democratic society”.

One of the men who sought the ruling in Strasbourg, Michael Marper, 45, was arrested in 2001.

He was charged with harassing his partner but the case was later dropped. He had no previous convictions.

The other man – a teenager identified as “S” – was arrested and charged with attempted robbery but later acquitted.

In both cases the police refused to destroy fingerprints and DNA samples taken when the men were taken in to custody.

The men went to the European Court of Human Rights after their cases were thrown out by the House of Lords.

They argued that retaining their DNA profiles is discriminatory and breaches their right to a private life.

The government claims the DNA profile from people who are not convicted may sometimes be linked to later offences, so storing the details on the database is a proportionate response to tackling crime.

Scotland already destroys DNA samples taken during criminal investigations from people who are not charged or who are later acquitted of alleged offences.

The judgement.

Head of Legal’s view.

David Mery’s view.

SpyBlog’s view, including additional questions / implications.

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8 Responses

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  1. David Mery said, on December 4, 2008 at 4:45 pm

    > Well, unless the Government appeals of course.

    The Government has no right of appeal as this is a Grand Chamber judgement. See http://gizmonaut.net/blog/uk/retaining_dna_records_of_innocents_is_hr_violation.html

    br -d

  2. ukliberty said, on December 4, 2008 at 6:30 pm

    Thanks David.

    Given the judgement, this article seems unreasonable.

  3. David Mery said, on December 5, 2008 at 1:12 am

    What, an error in an article!

    The expression “compulsorily retain” made me laugh.

    br -d

  4. ukliberty said, on December 5, 2008 at 1:49 pm

    Indeed, what does Johnston think happens at present?

  5. Kerry King said, on December 5, 2008 at 4:04 pm

    Dear Sir/Madam

    We have been awaiting the result of the S and Marper case with great personal concern and trepidation. Families such as ours who had the traumatic experience of having an innocent 13 year old kept in a police cell for two hours and then his DNA/fingerprints/photograph taken which are now kept on the national data base feel that perhaps justice and fairness in the legal system can prevail. Our concern is primarily that DNA from INNOCENT CHILDREN might not be deleted.
    AS the European judges ruled:-
    ‘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’.
    Also, it depends on where one lives as to whether there is any chance of DNA being removed as it is up to the discretion of the Chief Constable in the area. Again, as the judges ruled:-
    ‘The Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales’.
    Parents and families of ALL innocent children whose DNA are kept (illegally, according to the European judgement) implore the government to take a rational and fair decision about removing children’s DNA from the database.
    Kerry King. [address deleted]

  6. David Mery said, on December 6, 2008 at 4:49 am

    Kerry,

    See the advice from GeneWatch: ‘If your DNA is on the database you should now write to the Chief Constable of the police force that arrested you.’ at http://www.genewatch.org/sub-539478

    br -d

  7. Jacqui’s recent speech « UK Liberty said, on December 19, 2008 at 12:31 am

    […] mentions S & Marper and claims that “there are few areas where the balance between rights and protections comes […]

  8. Right to privacy vs. safety « UK Liberty said, on December 22, 2008 at 6:18 pm

    […] up our right to a private life? Thankfully a couple of recent decisions, regarding the holding of DNA on a national DNA database and of being retained on the sex offenders register indefinitely, have had a huge impact on […]


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