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Supreme Court to hear DNA profile appeal

21 July 2010

The High Court has agreed to allow a direct appeal to the Supreme Court over the existing police policy of retaining the DNA profiles of people who are not convicted of any crime.

Under the government’s Freedom Bill, which featured in the Queen’s Speech, DNA profiles and fingerprints from people investigated or arrested, but not convicted, would be destroyed in most cases.

Following the Scottish model, they would only be retained, for a maximum period of three years, in the case of serious violent or sexual offences.

The previous government’s reforms to the system, which were not as ambitious, were contained in the Crime and Security Act 2010.

They would have replaced the policy, introduced in 2001, of indefinite retention save in exceptional circumstances, with a single limit of six years for samples from those arrested but not convicted. However, this section of the Act has not been implemented.

Giving an ex tempore ruling in R (on the application of GC) v Met Police Commissioner and Home Secretary (no citation available), Lord Justice Moses and Mr Justice Wyn Williams said the doctrine of precedent obliged them to follow the leading House of Lords judgment, which backed the status quo.

In R (on the application of S) v Chief Constable of South Yorkshire [2004] UKHL 39, the Lords held that indefinite retention did not infringe article 8 of the ECHR.

Four years later in Marper v UK (930562/04 ECHR 1581), the European Court of Human Rights ruled that this approach did breach the right to respect for private life.

In R (on the application of GC) and the related case of R (on the application of C), both suspects had given DNA and fingerprints in the course of police investigations.

Neither were convicted of any offence, but their requests for the samples to be destroyed were refused by the Met Police. They applied for judicial review on the grounds that this policy was a disproportionate interference with their article 8 rights.

Without considering the merits of their individual cases, the Administrative Court had to decide whether to follow the existing House of Lords precedent or whether it could apply the later ECtHR ruling.

Shamik Dutta, solicitor at Fisher Meredith, acted for GC. “There has been a significant amount of time since the European judgment and as yet there is no change in the government’s position on the indefinite retention of samples,” he said.

“The current government has stated its intention to bring forward different legislation, although the terms of that legislation still need to be finalised and voted on in Parliament.

“Any judicial review must be determined on the basis of the law as it currently stands. However, we argued that if the court was bound by the precedent laid down in the House of Lords, then the case raised a point of law of sufficient public importance for an appeal to be heard by the Supreme Court.”

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