MCP Solicitors News
ECHR DNA Ruling And Its Implications
On 4th December 2009, in a landmark ruling which "disappointed" the Government, the European Court of Human Rights unanimously ruled that the current law in England & Wales relating to the retention of DNA profiles and fingerprints is unlawful in that it clearly violated Article 8 (right to respect for private and family life) of the European Convention on Human Rights in so far as the "blanket and indiscriminate nature of the powers……fails to strike a fair balance between the competing public and private interests……and cannot be regarded as necessary in a democratic society."
Currently, the UK DNA Database retained by the police contains approximately 5 million records, of which up to 1 million relate to people who have never been convicted of a criminal offence and including tens of thousands of children.
Under current police powers any person arrested in connection with the investigation of an offence will have their fingerprints and a DNA sample taken. These records are retained on the database indefinitely unless they were taken from someone who was never suspected of an offence (e.g. where all residents in a specific area voluntarily give fingerprints or DNA samples for the purposes of elimination).
The existing practice means that if a person is not charged after arrest or is charged and subsequently acquitted at court, their details will remain on the database.
It is this all encompassing approach that the ECHR has now said is a breach of the European Convention of Human Rights. The Court pointed out that such provisions do not apply anywhere else in Europe or even in Scotland. (The Scottish Parliament has restricted the scope of their database in much more limited terms than England to those which are similar to the majority of mainland Europe).
The Government are very unhappy with this judgment and had vigorously defended the proceedings throughout. However, the UK is bound by the judgment and, since it was a unanimous decision of the 17-member court, there is no right of appeal. Moreover, the Government must act in accordance with its duties under Article 46 of the Convention and change the law to prevent continued violation. The only lawful alternative is for England & Wales to seek to withdraw from or qualify its accession to the Convention which is against current Government policy.
The immediate response of the Home Secretary was one of disappointment. However, in a speech on 16th December, Jacqui Smith acknowledged the need for reform in the light of the judgement and promised a White Paper this year. She will be aware of the obligation to implement changes by March 2009 as required under the Convention and she has already promised to remove the details of all those under 10 years of age with immediate effect (Approximately 70,000 youngsters.) In reality, the Government is likely to delay making other changes for as long as possible. This is despite the ruling, the views of civil liberties groups and Parliamentary opposition.
This does not prevent individuals from taking action to have their records deleted in appropriate circumstances. It is recommended that they should do so. The more people who make such requests, the sooner the Government is likely to be forced to make changes.
The first step for an affected individual to take is to write to the Chief Constable of the area in which they were arrested requesting the destruction of their samples and deletion of the records relating to those samples. The police will need to know when and where the arrest took place, as a result of which the samples were taken, together with the outcome of the investigation or details of any subsequent proceedings. In addition grounds for the request need to be given - "in light of the recent ECHR decision" should to be sufficient.
We anticipate that police forces will be reluctant to comply with such requests. If a refusal is forthcoming, then proceedings for judicial review could be instituted or at least threatened. It is felt likely that the courts will have no qualms in ordering forces to comply with the ECHR ruling and the consequent publicity is likely to increase pressure on Government to take action. The ideal case would be one where records and samples are taken after 4th December 2008 and where either no further action was taken or the individual was charged and acquitted before the courts.
For further information or assistance in pursuing action to have your DNA and fingerprint records removed from the police database, please contact: Sally Dale
