Police guidelines on retaining DNA profiles are unlawful, Supreme Court rules

Guidelines used by the police to determine when they should destroy DNA profiles and fingerprints are unlawful and incompatible with article 8 of the ECHR, the Supreme Court has ruled.

The guidelines, drawn up by the Association of Chief Police Officers (ACPO), provide that data should only be destroyed in exceptional cases.

The government has committed itself to reforming the law so that, in line with the Scottish approach, samples would be retained only in the case of serious violent or sexual offences and then only for three years.

In 2008 the European Court of Human Rights ruled in Marper that indefinite retention of samples breached article 8.

The High Court agreed to allow a leapfrog appeal to the Supreme Court last summer (see solicitorsjournal.com 26 July 2010).

Giving the leading judgment this morning in R (on the application of GC) v Met Police Commissioner [2011] UKSC 21, Lord Dyson said that since parliament was already 'seised of the matter' it was neither just nor appropriate to make an order requiring a change within a specific period.

'The legislature must be allowed a reasonable time in which to produce a lawful solution to a difficult problem,' Lord Dyson said.

'Nor would it be just or appropriate to make an order for the destruction of data which it is possible (to put it no higher) it will be lawful to retain under the scheme which parliament produces.

'In these circumstances, the only order that should be made is to grant a declaration that the present ACPO guidelines (as amended) are unlawful.'

Lord Dyson said that if parliament did not produce revised guidelines within a reasonable time, the appellants would be able to launch a judicial review and 'their claims will be likely to succeed'.

Lords Phillips, Judge and Kerr and Lady Hale agreed. Lords Rodger and Brown dissented.