Tuesday 9 December 2008

DNA Retention Struck Down

Last week, om 4 December, the Grand Chamber delivered its judgment S. and Marper v. United Kingdom, a highly anticipated case on the retention of fingerprints and DNA by the British authorities. The complaints centered on the situation of persons who had been suspected of crimes but who had subsequently either been acquitted or whose proceedings had been discontinued. Current British law allowed for the unlimited DNA, cellular samples and fingerprint retention of that category of persons, even when such persons requested the authorities to destroy such samples.

The Grand Chamber unanimously found that this situation violated the right to respect for privacy under Article 8 ECHR. The judgment contains noteworthy passages on the retention of DNA as an interference with private life. In addition, the Court noted (in para. 110) 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." This affects the margin of appreciation (para. 112):

In the Court's view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.
The Court concluded that the existing blanket and unlimited retention of this kind of personal information overstepped any acceptable margin of appreciation.

The case thus indicates the outer limits of the acceptable storage of personal information. In the following years - considering the high relevance of the issue in most state parties to the ECHR - the issue will certainly resurface. What can already be concluded from this case, is that the state should carefully balance the interests of society and the individual interest of privacy. Blanket and general rules applying to everyone irrespective of guilt or nature of the suspected crime just will not do.

The press release can be found here. A video of the delivery of the judgment by President Costa can be watched here.