Private matter?

The government is being forced to revisit legislation on DNA retention for the purposes of investigating and detecting crime.

The case of Marper v UK (30562/04 [2008] ECHR 1581), heard in the Grand Chamber of the European Court of Human Rights on 4 December, considered whether the UK should be allowed to retain fingerprints and DNA samples of a person accused of a crime and use them for the purpose of detecting other criminal behaviour.

The applicants' complaint rested on Articles 8 and 14. Their argument was that the authorities had continued to retain their fingerprints, samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued.

The central issue was whether retention infringed the applicants' right to private life. The applicants contended that there was an interference with their private life that was unjustified under Art.8(2). Art.8(2) allows states to interfere with privacy if a measure is in accordance with law, meets a legitimate aim and is necessary in a democratic society.

Police power to retain samples

Under s.64(1A) of the Police and Criminal Evidence Act 1984, the police have power to retain fingerprints and DNA samples, for an indefinite period, of persons investigated for a criminal offence. However, those who volunteer fingerprint or samples in connection with an investigation and are not considered a suspect in the offence must have their samples and fingerprints destroyed.

Prior to the amendment of PACE in 2001, s.64 in its earlier form had included a requirement for destruction of fingerprints and samples in the case of acquittal, subject to certain exceptions, 'as soon as practicable after the conclusion of the proceedings'.

The House of Lords had dismissed Marper's appeal by a majority ruling that there was no interference with Art.8 by retaining such 'neutral' information. The House of Lords also agreed that if an interference did arise, any such interference could be justified under Art.8(2) as being necessary in a democratic society, given the advantages in preventing and prosecuting crime.

Failure to strike a balance

In a careful and considered judgment, the UK's policy of indefinite retention of DNA without exception was heavily censured. The judges ruled that the retention of the DNA 'failed to strike a fair balance between the competing public and private interests', and that the UK government 'had overstepped any acceptable margin of appreciation in this regard.'

The court also ruled that 'the retention in question constituted a disproportionate interference with the applicants' right to respect for private life and could not be regarded as necessary in a democratic society.'

The Grand Chamber agreed that the ensuing social stigma for youths whose DNA was retained despite being cleared of an offence was of grave concern. Certainly the idea of retention, in the absence of conviction, sits uneasily alongside the presumption of innocence. More worrying is the ability of the state to trace genetic relationships between individuals and for ethnic profiling.

The court noted that the United Kingdom (excluding Scotland) was the only one of the contracting states to have an indefinite period of retention. Other states, particularly Scotland, either destroyed all data if there was no conviction or had exceptions: 'The court was implying that indefinite retention of data is not the least intrusive measure that the state could have taken to achieve its aim.'

The UK did not discriminate between offences based on their gravity or the suspect's age. There was also no opportunity for independent review of a decision to retain based on transparent and clear criteria.

Evidence from previous investigations

The judgment in Marper provides a further basis for arguing against the admissibility of DNA evidence based on samples retained from previous investigations where the case does not result in a conviction. The UK courts have left the question of inadmissibility where DNA evidence is unlawfully retained to the discretion of the trial judge. However, in Attorney General's Reference (No 3 of 1999) [2001] 2 AC 91, the House of Lords had to

consider whether it was permissible to use in evidence a sample which should have been destroyed under the (then) text of s.64 of PACE (prior to 2001 amendment). The House considered that the prohibition on the use of an unlawfully retained sample 'for the purposes of any investigation' did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition, but left the question of admissibility to the discretion of the trial judge.

This case exposed a predilection for expediency and pragmatism which were both prioritised over principle and the safeguarding of the presumption of innocence. The obtaining of a second sample on arrest was enough to placate the court in this instance.

Despite Marper, and while awaiting legislative change, judges will still have to weigh all factors in the balance when approaching evidence based on unlawfully retained DNA. The risk remains that once a match is known, the temptation to adopt a results-based approach is irresistible. The Crown Prosecution Service will need to ensure that they present the best evidence to the court, and that the police focus on investigating and retaining evidence in relation to the current offence. As always, the danger of focusing on past suspected misconduct is that complacency may result.