If you get taken into custody in the UK, for example, finger prints and other non-intimate samples may be taken without your consent – these include oral swabs, saliva, footwear impressions and photos. In some cases, intimate samples (such as blood, urine, semen, dental impressions, pubic hair, or tissue) may be requested. These need your written consent and the consent of the police inspector, but if you refuse this could harm your defence if brought to trial1.
Information from these samples will be stored in a database and may be used to identify you in future police investigations or unsolved past crimes. This is the case even if you are never convicted of any offence. There are approximately 4 million DNA profiles held in total on the UK database, which according to the Home Office’s website is “the largest of any country”. Approximately 850 000 of these profiles come from innocent individuals.
Two men, arrested in the UK, but never convicted of any offence, brought their cases to the European Court of Human Rights in Strasbourg. In an important recent judgment2, 17 judges unanimously found that the retention of the cellular samples of these two men, their DNA profiles and fingerprints constituted a disproportionate interference with their right to respect for private life. The Court was struck by the blanket and indiscriminate nature of the power of retention in the UK, under which material can be retained irrespective of the nature or gravity of the offence or the age of the suspected offender. In addition, the retention is not restricted in time and there are limited possibilities of asking for such data to be removed. The UK had overstepped its “margin of appreciation”3 and had not managed to find a fair balance between competing public and private interests.
England, Wales and Northern Ireland are the only jurisdictions within the Council of Europe with such a retention regime. Interestingly, in Scotland, the DNA of unconvicted persons is only retained in respect of adults who have been charged with violent or sexual offences, and even then, for three years only, with the possibility of a further extension for two years with the consent of a Sheriff.
This decision of the Strasbourg Court is not just relevant to the United Kingdom. It also sends out a clear message to all Council of Europe Member States to look critically and analytically at their own laws which regulate the retention of intimate data.
Member States must find the right balance between the interests of society in preventing crime on the one hand and the interests of the individual and his or her right to privacy on the other.
DNA is biological material from human cells and represents an individual’s unique identity. It contains details of the composition and functioning of our bodies as well as of our ethnic and familial heritage. Fingerprints, DNA profiles and cellular samples all constitute personal data. The mere retention of such data amounts to an interference with the right to private life within the meaning of Article 8 of the European Convention on Human Rights.
It might be tempting for national authorities to keep data bases of intimate samples for future cross-checking, but such practices raise serious human rights concerns. The principle of proportionality in the carrying out of criminal justice is crucial here.
Our international legal standards are clear. The Council of Europe’s Data Protection Convention 1981 sets out the framework and provides that data should be “stored for specified and legitimate purposes and not used in a way incompatible with those purposes.” 4
In relation to the length of time data should be held, the Committee of Minister’s Recommendation No. 87(15) suggests that personal data kept for police purposes should be “deleted if they are no longer necessary for the purposes for which they were stored.” 5
Factors which could trigger the deletion of data are the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, and particular categories of data.
In other words, data should not simply be stored indefinitely for a possible future match.
Council of Europe Recommendation No. R (92)1 on the use of analysis of DNA within the framework of the criminal justice system (adopted in 1992) goes one step further and recommends that “samples or other body tissues taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.”
However, it does provide that where the individual concerned has been convicted of serious offences against the life, integrity and security of persons, DNA may be retained, although in such cases storage periods should be defined by domestic law.
Why should we be concerned about retaining DNA on national databases?
Firstly, if we hold on to the principle that all people are innocent until proven guilty, it should not be relevant to know whether a person has ever been suspected of any offence by the police. Once a person has been acquitted or the charge dropped against him or her, he should start again with a clean slate. Innocent persons should not feature on these types of databases.
Secondly, there is a risk that certain groups in our society are disproportionately affected by such databases. Given the peak age of offending, minors tend to be over-represented. Males from black and ethnic minorities are also over-represented, often as a result of policing habits, including stop and search techniques.
Thirdly, we are right to be concerned about the potential use of cellular material in the future. Science might one day enable more detailed and personal information to be gleaned from such samples. Domestic law also might be changed to allow samples to be used for purposes other than those currently imagined.
The retention and storing of data is delicate and must be highly protected from risk of abuse. We have already seen what a devastating and stigmatising effect losing files or publishing lists of names on the internet can have on the persons concerned.
We need clear and detailed national rules governing the storage and retention of samples. Complaint mechanisms before data protection monitoring bodies or courts also provide an important safeguard against potential abuse and arbitrariness.
The arguments in favour of a population-wide DNA database are not compelling. Retention of DNA samples and profiles should be confined to those convicted or cautioned of serious offences, for example violent and/or sexual offences, and then only for a limited time.
Thomas Hammarberg
--------------------------------------------
Notes:
1. See the UK Home Office website: http://www.homeoffice.gov.uk/police/powers/custody/
2. Case of S. and Marper v. the UK (Applications Nos. 30562/04 and 30566/04, 4 December 2008)
3. The Court affords States a degree of deference when it examines how they have interpreted and applied national law
4. Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981
5. Committee of Ministers’ Recommendation No. R (87)15 Regulating the use of Personal Data in the Police Sector