Retention Of DNA Samples Does Not Infringe Genetic Privacy

In September the Court of Appeal confirmed that retention of DNA samples and fingerprint evidence by police, after a suspect has been cleared of the criminal offence for which he had been investigated, is compatible with Articles 8 and 14 of the European Convention on Human Rights ("ECHR"). This decision has raised serious concerns regarding genetic privacy among certain members of the public and community groups.

The police retained DNA samples and fingerprints taken from S, a minor, and Michael Marper, pursuant to s.64 of the Police and Criminal Evidence Act 1984 ("PACE") after S was acquitted and the charges against Marper were dropped. Section 64 of PACE permits retention of fingerprints and samples after they have fulfilled the purpose for which they were taken, provided that such evidence is not used other than for, among other things, purposes related to the prevention or detection of crime.

Counsel for the appellants submitted that:

retention of fingerprints and other samples from persons in the position of the appellants under s.64 of PACE constituted unjustified interference with their right to respect for their private lives under Article 8(1) of ECHR;

retention of fingerprints and other samples from persons in the position of the appellants under s.64 of PACE discriminates, without objective justification, between members of a relatively similar class, namely those who have never been suspected of committing a criminal offence and those who have been suspected of or charged with committing a criminal offence, but who are not convicted of such an offence, contrary to Article 14 of ECHR; and

regardless of whether or not s.64 of PACE is incompatible with Articles 8 and 14 of ECHR, the policy of the Chief Constable of South Yorkshire Police of retaining all fingerprints and DNA samples taken by the South Yorkshire Police was incompatible with Article 8 of ECHR because, among other things, there are no foreseeable criteria in that policy for interfering with the rights granted under Article 8 and it is therefore not in accordance with the law, and it is a blanket policy which constitutes a fetter on the Chief Constable's discretion.

The Court of Appeal dismissed each of these arguments and upheld the decision of the Divisional Court that s.64 of PACE is not incompatible with Articles 8 or 14 of ECHR. Woolf LCJ, in the major judgement, held as follows:

While the Court acknowledges that the retention of fingerprints and DNA samples...