Privacy International [blank.gif] Privacy International Police are allowed to Keep DNA of Innocent, say UK Law Lords 23/07/2004 Police are allowed to keep DNA of Innocent, say UK Law Lords In light of a lacuna of cases defining the application of DNA and biometric technologies in relation to the right to respect of private and family life in European Court of Human Rights jurisprudence, the case of Marper and LS provided the House of Lords with an opportunity to contribute to the development and definition of this right. This is particularly pertinent considering the UK maintains the largest DNA database in the world. Sadly, however, throughout the judgement, the Lords rely on case law that is arguably dated considering the technological advances that have been made regarding the use of DNA and refuses to take account of potential scientific advances that may occur. The dubious conclusion that the taking and retention of an individual's DNA does not constitute even the remotest interference with their private life, even if it could be later considered necessary and proportionate, provides a disappointing precedent to future litigation in this field. The speech of Baroness Hale of Richmond, whilst dismissing the appeal, offers a more logical and rational discussion of concerns regarding the possession of DNA samples. The Background to the case Two consolidated test cases[1], which will be referred to as LS and Marper, were heard before the House of Lords in 2004 to determine whether it is lawful for the police to retain the DNA samples and fingerprints taken from individuals who had been arrested and not charged. The legislation which introduced this new policy was section 82 of the Criminal Justice and Police Act 2001, which came into effect on 11^th May 2001. Prior to the entry into force of section 82, the retention of fingerprints and samples by the police was unlawful as governed by section 64 of the Police and Criminal Evidence Act 1984. Section 82 transformed this practice and now permits for the retention of fingerprints and samples taken from a person who has been involved in the investigation of an offence. The legislation additionally provides that the fingerprints or samples shall not be used for any other purposes other than those related to the prevention or detection of crime, the investigation of an offence or the conduct of the prosecution. Lord Steyn provides the leading speech in the judgement of the cases and comprehensively outlines the background to and characteristics of the debate that he deems to be relevant or otherwise. He refers to the explanatory notes to the disputed legislation, which reveal the impetus for the legislative change. The notes provide that the amendment was made as a result of two decisions in the Court of Appeal (Criminal Division) in the case of R. v Weir (26^th May 2000, Unreported) and R. v D (Attorney General's Reference No. 3/1999) May 2000 [2001] 2 AC 91. In both cases, compelling DNA evidence linked the suspects to a rape and a murder respectively. However, the DNA samples of the individuals had been retained without lawful authority, because neither had been convicted of the offences for which their DNA was taken, and so the Court of Appeal conceded with the appellants that the DNA samples could therefore not be used. The House of Lords overturned the decisions stating that "it (section 64) did not make evidence obtained as a failure to comply with that prohibition inadmissible, but left it to the discretion of the trial judge". In addition, Steyn emphasises the 'value of DNA evidence' and reiterates statistics provided by the Home Office that express a 40% chance that a crime scene sample will be matched immediately with an individual's profile in the databases. He states, "this is the context in which the questions before the House must be considered". The Facts In brief, the facts of the two cases before the court are as follows. In the case of LS, the appellant is an 11 year old male of no previous convictions who was arrested on 19^th January 2001 and charged with attempted robbery. Following a trial in June 2001, he was acquitted. Subsequently, the Principal Fingerprint Officer of South Yorkshire police informed LS that the police will be retaining his fingerprints and samples as a result of the legislative change. His solicitors demanded destruction of the samples and fingerprints, but the police refused. Accordingly, the solicitors sought judicial review of the police decision and sought a quashing order to quash the policy of retention in all cases, a declaration that the chief constable had acted in a manner incompatible with Articles 8[2] and 14[3] of the European Convention on Human Rights (ECHR), and a declaration that section 64 of PACE, as amended, is incompatible with Articles 8 and 14 to the extent it permits retention of samples and fingerprints where an individual does not have a criminal record. Marper, who also is an individual of good character, was arrested on 13^th March 2001 and was charged with harassment of his partner. He subsequently appeared in court and pleaded not guilty. Prior to the commencement of a trial, he was reconciled with his partner, who decided to discontinue the charges. Consequently, Marper demanded the destruction of his fingerprints and samples, which was refused. He applied for judicial review in December 2001 on the same legal grounds advanced by LS. The Divisional Court and the Court of Appeal The case was primarily heard in the Divisional Court, where the court held that the retention policy did not contravene either individual's right to a private life or the right not to be discriminated against. The challenge to the chief constable was also rejected. The case duly moved to the Court of Appeal, at which point Liberty, a British human rights organisation, was given the right to submit an intervention. Liberty stressed that" "the physical samples which are retained and used·and from which DNA is taken potentially contain very much greater, more personal and detailed information about the person who provided the samples than is needed for the identification of those involved in crime." The Court of Appeal upheld, by a majority, the decision of the Divisional Court but found that Article 8(1) was engaged, but only to an extent justified under Article 8(2). The dissenting judge proposed that the chief constable was required to consider whether in each particular case the individual concerned is free of any taint of decision prior to deciding whether to retain samples or not. The issues in front of the House of Lords The issues involved in the case of Marper and LS can be summarised as follows: * whether the retention of fingerprints, samples and DNA profiles is an interference with the appellants' right to respect for private life pursuant to article 8(1) of the ECHR and, if so, whether it can be justified under article 8(2); * whether a distinction should be made between the retention of DNA profiles and samples; * whether the retention of the appellants' fingerprints, samples and DNA profiles amounts to discrimination against them for the purposes of article 14 of the ECHR and, if so, whether it is objectively justified; * if the retention of fingerprints and DNA profiles and/or samples is an unjustified interference with the appellants' Convention rights, whether it would be possible to give section 64(1A) a Convention-compatible interpretation under section 3 of the 1998 Human Rights Act; * if that is impossible, whether section 64(1A) should be declared to be incompatible with article 8 and/or 14 of the ECHR; * whether the policy of the Chief Constable to retain samples and fingerprints in all cases subject to exceptional circumstances is unlawful and incompatible with the appellants' Convention rights. The Arguments considered under Article 8 In considering whether the retention policy interferes with the right under Article 8(1), the appellants relied upon the consideration that Sedley LJ, in the Court of Appeal, granted to the "cultural unease" in the United Kingdom about retention and collection of information about individuals. Lord Steyn dismissed this proposition stating that arguments of cultural traditions are not relevant under Article 8(1) on the premise that the meaning of the Convention should be uniform throughout the states party to it. Lord Steyn then considered Liberty's concerns as to what may happen in the future in light of the "expanding frontiers of science". He dismissed this argument as not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime concluding that if future scientific developments require it, judicial decisions can be made when the need occurs to ensure compatibility with the ECHR. He relies on the limited genetic information provided by the recorded profiles and that the law expressly states that the samples are only retained for the purposes of the detection, investigation and prosecution of crime. His conclusion is therefore that the general testing of the retained samples for medical conditions or other characteristics will not occur. A further argument proposed by Counsel for the appellants concerned the potential for abuse of the legislative wording. 'Purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution' were submitted to be capable of allowing for other uses. Lord Steyn conceded this point but only to the limited extent that it also allowed for exoneration of an individual whose DNA may prove he has been wrongly convicted. Concerns that any other purposes could be inserted into the wording were duly dismissed with particular emphasis placed on the interpretative obligation of section 3 of the Human Rights Act, which places an obligation to read legislation in a manner compatible with the ECHR. Consequently, Lord Steyn concluded that there was no breach of Article 8(1) but proceeded to consider that if he was wrong in this assertion, there would only be a 'modest infringement'. In light of this, Lord Steyn moved to consider the arguments submitted by the appellants regarding Article 8(2). The appellants argued in this regard that an interference cannot be justified because it is not 'in accordance with law' and the power of retention is disproportionate to the stated aim. Counsel cited a previous ECHR case, stating 'a law which confers a decision must indicate the scope of that discretion'. Steyn dismisses this on the premise that this 'search for certainty may entail excessive rigidity' and furthermore, the purposes of the retention policy are provided for by law. Concerning proportionality, the appellants argued that the retention of samples and fingerprints creates criminal suspicion in respect of persons who have been acquitted. In response, the Home Secretary argued that this assertion focuses on the wrong target - retention is not aimed at the past but is to assist investigations in the future and therefore it does not apply to the appellants unless they will be implicated in a future crime. Consequently, Steyn decides that even if there was a breach of Article 8(1), which he had not found, then the purposes clearly justified the policy in accordance with Article 8(2). He relies on the following propositions as evidence of this: "(i) the fingerprints and samples are kept only for the limited purpose of the detection, investigation, and prosecution of crime; (ii) the fingerprints and samples are not of any use without a comparator fingerprint or sample from the crime scene; (iii) the fingerprints and samples will not be made public; (iv) a person is not identifiable to the untutored eye simply from the profile on the database, any interference represented by the retention being minimal; (v) and, on the other hand, the resultant expansion of the database by the retention confers enormous advantages in the fight against serious crime. Cumulatively these factors suggest that the retention of fingerprints and samples is not disproportionate in effect"[4]. The Arguments considered under Article 14 On the basis of Steyn's conclusion that Article 8 is not violated, it follows that Article 14 is logically not engaged either as the right to not be discriminated against is not a free standing right. Nonetheless, he considers the submissions in this regard. In assessing whether the retention policy is discriminatory in nature, the appellants' chosen comparators were individuals who have not had their fingerprints or samples taken by the police in the course of an investigation, as opposed to individuals that have. Steyn concludes that these categories are not in an analogous situation, as one group has been charged with a recordable offence and the other has not. He does however draw his own analogy with the retention of medical records by hospitals and deduces that a challenge to such a policy of retention would undoubtedly fail. He points to the fact that the existence of the police records does not relate to a specific personal characteristic either and therefore the line drawn between people that have faced charges and those that have not is not arbitrarily drawn. The possession of the fingerprints or samples by the police does not give rise to a 'status' within the meaning of Article 14 and the appellants, and other individuals in their position, are as fully entitled to the presumption of innocence as the general body of citizens. Furthermore, even if there was a breach of Article 14, an objective justification is established and the requirement of proportionality is satisfied. Consequently there is no breach of Article 14. The challenge to the loss of discretion The appellants argue that the 'blanket policy' of retention, save in exceptional circumstances, is unlawful and the policy is a fetter on the discretion of the Chief Constable to decide which circumstances justify the retention of fingerprints and samples. They submit the only fair solution is a case by case examination of the circumstances of each case, particularly as the legislation confers the powers of retention to be used where the individual is suspected of committing an offence, although counsel conceded that this would necessarily involve a large number of decision makers and examination of thousands of cases. This solution is dismissed as unrealistic and impractical. Lord Steyn suggests that exceptional circumstances may constitute, for example, where the samples were unlawfully taken or where a specific undertaking to destroy them was given and so does not extend to include circumstances where it is decided that an offence has not actually been committed. Consequently the appeal is dismissed. The remaining judgements The remaining Law Lords reached the same conclusion as Lord Steyn but with differing reasons in certain cases. Lord Roger of Earlsferry merely disputed the alleged attitude of the public as being one of alarm at the proposition of increasingly retained information on UKcitizens. Rather he pointed to acquiescence with the storage of the information on suspected sexual offenders as proof that attitudes had relaxed to this practice. Baroness Hale of Richmond disagreed more substantially. She disputed the proposition that retention and storage was not an interference with the appellant's rights under Article 8(1). Furthermore, she distinguished between fingerprints and DNA, relying on the Canadian Privacy Commissioner's report on Genetic Testing and Privacy, citing: "The measure of our privacy is the degree of control we exercise over what others know about us. No one, of course, has absolute control. As social animals, few would want total privacy. However, we are all entitled to expect enough control over what is known about us to live with dignity and to be free to experience our individuality. Our fundamental rights and freedoms - of thought, belief, expression and association - depend in part upon a meaningful measure of individual privacy. Unless we each retain the power to decide who should know our political allegiances, our sexual preferences, our confidences, our fears and aspirations, then the very basis of a civilised, free and democratic society could be undermined." and "No surveillance technology is more threatening to privacy than that designed to unlock the information contained in human genes." She argues that samples are taken precisely because they contain information relating to an individual and for no other reason and therefore the policy does interfere with privacy rights. Having argued that the taking of fingerprints and DNA is an interference of privacy because of the information they contain, Baroness Hale continues to assert that it logically follows that the storage of this information is also an interference, even if no use is made of them. She states that even if someone has read her private correspondence or seen her bank accounts, it is an interference with privacy even of that person does not disclose what they have seen. The fact that only a few people can understand the information contained on a genetic code does not affect the principle, though it may affect the justification. Baroness Hale considers the predicted future uses of DNA and states that although no one is thinking of using the samples collected for undefined purposes, the fact that they could be so used, even if many years away, means the appellants have a very real interest in how they are stored and who has access to them. She concludes that if keeping and storing this information was not an interference with the right guaranteed by Article 8(1), the consequences would be surprising. There would be no need to find justification under Article 8(2) if the state were free to keep such information without a legitimate aim. Secondly, if Article 8(1) was not engaged by keeping private information, then the state would be able to be thoroughly discriminatory in choosing which information to keep without ever contravening Article 14. She uses the example of a hypothetical decision to keep all information from black suspects, but not white suspects, as undoubtedly contravening Article 14, but asserts that unless the prima facie policy falls within Article 8(1), this could not be described as a discriminatory policy in law. Baroness Hale argues therefore that the policy is an interference with the right under Article 8(1), but one that is justified under Article 8(2). Lord Carswell agrees the appeals should be dismissed, but uses his speech to take issue with an argument concerning the correct pool of comparators voiced in the Court of Appeal. Finally, Lord Brown of Eaton-under-Heywood dismisses the appeals too, but mentions the difficulty he has in understanding why anyone would object to the retention of their profile if it has been lawfully retained. The only reason he can recognise for the objection is that it will increase the propensity of being caught committing a future crime - and this is not a legitimate objection. He counters arguments of the creation of an Orwellian state by asserting if the government were to improperly use samples, then all samples would have to be destroyed including those belonging to the convicted. He further questions in whose eyes the appellants will be stigmatised, particularly considering that the samples of volunteers are also held on the database. Overall, however he considers the benefits of the database to be so manifest and the objections so threadbare. _______________________ [1] Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte LS (by his mother and litigation friend JB) (FC) (Appellant) and Regina v. Chief Constable of South Yorkshire Police (Respondent) ex parte Marper (FC) (Appellant) (Consolidated Appeals) [2004] UKHL 39 [2] Article 8: (1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2)There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. [3] Article 14: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. [4] Paragraph 38 of Lord Steyn's judgment. _________________________________________________________________ Related: Data Protection and Privacy Laws Home Page Key report damns UK National DNA Database Policy European Court Rules DNA Retention Illegal UK DNA Law Lords Decision on Marper and LS << Back Email us at privacyint@privacy.org. Call on +44 (0)208.123.7933. Privacy Policy - About PI - Support PI