Court/Judicial body: European Court of Human Rights
Date: December 4, 2008 CRC
Provisions: Article 40: Administration of Juvenile Justice
Other international provisions:European Convention on Human Rights, Article 8 (Right to Private Life), Article 14 (Non-discrimination)
Domestic provisions:Police and Criminal Evidence Act 1984 (PACE)
Background: S, a minor, and Marper had both been arrested and charged with crimes. As a part of the booking process, DNA samples and fingerprints were taken. S was later acquitted and charges were dropped against Marper, and both requested that the police destroy their fingerprints and samples. The police refused, and S and Marper sued to force the destruction of the data.
Issue and resolution: Privacy. The Court found that the UK government’s blanket DNA and fingerprint retention policies for all persons suspected of committing criminal acts violated the right to private life.
Court reasoning: Although the police have a very strong interest in protecting the public from criminal activity, this interest must be weighed against individuals’ right to private life. In this case, the police policy to retain the private biometric data of persons who have not been convicted of offences is a clear violation of these individuals’ privacy.
Excerpt citing CRC and other relevant human rights 38. According to a recent report by the Nuffield Council on Bioethics, the retention of fingerprints, DNA profiles and biological samples is generally more controversial than the taking of such bioinformation, and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints, given the differences in the level of information that could be revealed. The report referred in particular to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints, samples and DNA profiles from all those arrested for a recordable offence, irrespective of whether they were subsequently charged or convicted. The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors, having regard to the requirements of the 1989 UN Convention on the Rights of the Child. … 55. Article 40 of the UN Convention on the Rights of the Child of 20 November 1989 states the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society. … 124. The Court further considers that the retention of the unconvicted persons’ data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. The Court has already emphasised, drawing on the provisions of Article 40 of the UN Convention on the Rights of the Child of 1989, the special position of minors in the criminal-justice sphere and has noted in particular the need for the protection of their privacy at criminal trials (see T. v. the United Kingdom [GC], no. 24724/94, §§ 75 and 85, 16 December 1999). In the same way, the Court considers that particular attention should be paid to the protection of juveniles from any detriment that may result from the retention by the authorities of their private data following acquittals of a criminal offence. The Court shares the view of the Nuffield Council as to the impact on young persons of the indefinite retention of their DNA material and notes the Council’s concerns that the policies applied have led to the over-representation in the database of young persons and ethnic minorities, who have not been convicted of any crime (see paragraphs 38-40 above).
Follow up: Following a consultation and response on “Keeping the right people on the DNA database,” the UK has announced new data retention policies, available at http://www.homeoffice.gov.uk/documents/cons-2009-dna-database/ These have been widely criticised by human rights advocates as again failing to respect the right to private life.
Notes: Civil rights groups Liberty and Privacy International intervened in the case to make submissions in support of S and Marper’s challenge. Liberty highlighted in particular the disproportionate impact the UK’s retention policy would have on children, especially members of racial or ethnic minorities.
CRIN comments: CRIN believes that this decision is consistent with the UK’s obligations under the CRC. In the juvenile justice context, CRIN believes that children’s right to privacy means that the government should not retain their DNA, fingerprints, or other identifying information unless they have been convicted of a serious offense, and even then only until they reach the age of majority.
Citation:  ECHR 30562/04
Link to full judgement: http://hudoc.echr.coe.int/eng?i=001-90051