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S and Marper v UK

The European Court of Human Rights has today ruled against the UK in this important case about retention of DNA samples and profiles as well as fingerprints. S had been charged with attempted burglary when 11 in 2001; he was acquitted, but his DNA was retained under section 64 of PACE. Marper was charged with harassment, also in 2001, but proceedings were discontinued – again, his samples were retained.

The Grand Chamber of the ECtHR has ruled – unanimously, which surprises me a great deal – that UK law on this is a disproportionate interference with the article 8 right to respect for private life. It had no problem in deciding retention of the samples was an interference with article 8, and I’m not at all surpised by that. To be honest, I thought Lord Steyn was unrealistic in the House of Lords about this, and that Lady Hale had it right (yes, I do agree with her sometimes). I reckon it was always pretty obvious there was some interference, even if Lord Steyn was right to say that interference was “very modest indeed”. The ECtHR, though, took a more serious view of the effect of the interference on individuals.

Justification, though, is the meat of the judgment. The Court gave great weight to practice in other countries (paras. 108-110) and saw UK law as out of line; on that basis, it narrowed the margin of appreciation allowed to the UK (para. 112). While the Court accepted retention was for the legitimate purpose of preventing and detecting crime it saw the UK’s approach as blanket and indiscriminate (para. 119), applying to youths as well as adults, allowing long or indefinite retention and with a very limited ability to obtain destruction. The Court’s conclusion, that UK law on this is disproportionate to its legitimate aims and so in breach of article 8, is at para. 125.

I’m surprised by this, and disappointed: my own view, like Lord Pannick’s, is that building up a large DNA database by wide collection and long retention of samples is amply justified. I think Sedley LJ must be disappointed too, because this judgment clearly dishes his idea of a universal database. It seems to me that the ECtHR has given far too much weight to the abstract, science-fiction concerns here and far too little to the important offences DNA evidence can solve, and that it’s taken far too interventionist and narrow a view to the margin of appreciation here. I fear that, if close study of this judgement results in states feeling obliged to adopt a case-by-case approach to retention rather than a “bright lines” rule-based approach, the administrative burden on states will be great, litigation will grow, and inevitably crimes that might have been solved, will not be. And all because people are terrified by Hollywood fantasies about bits of gunk in test-tubes.

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  1. It’s not a hollywood fantasy that DNA-based matching isn’t very good over a large population of samples, because of the possibility of false positives.

    In a small population of suspects, it solves crimes. In the population of everyone arrested, it can only lead to injustice.

  2. Let us imagine one day when a PC has been given a rollocking for not arresting enough plebs this month. So instead of words of advice, he decides to arrest me, on some trivial offence as all offences are arrestable these days. I am duly “processed”, and fingerprints and DNA taken against my will by legalised assault.

    When his Inspector gets to hear of it, sanity may prevail, and everything thrown out including me from custody. Well, everything except my fingerprints and DNA.

    Because they have been “lawfully taken” they remain on record and turn me into a suspect for every unsolved crime that exists today, and every crime that has yet to be committed. I am now “known to the police”, a fact that will be disclosed on every Enhanced CRB check for the rest of my life. That will prevent taking posts in many areas of life.

    Fortunately this is all imagination, but you think that these concerns are trivial, overblown hype? Try to put your feet back down here on earth, please. Floating about in the clouds upsets the cuckoos.

  3. I do think they’re hype, yes! Cases like this can happen without DNA being involved at all; the dangers in the CRB system aren’t caused by DNA, or fingerprints. I don’t think you’re right, either, that the mere fact of a past arrest is routinely cited on enhanced CRB checks – happy to be corrected on that of course, as always. Anyway, even if it is, the problem is citing the arrest, which can be done even if DNA technology didn’t exist – as, again, in the case I’ve linked to.

    Marcin, you’re quite wrong to say DNA “can only lead to injustice”. I admit it can lead to injustice, but you’re ignoring the ways in which it can lead to justice, too. I’m amazed how ready people are to dismiss that.

  4. The Court has ruled unanimously. “Disappointment” is shared here by Head of Legal and Jacqui Smith.

    There are clear criminal justice benefits in the proper, careful and scientific use of DNA. Castree, the killer of little Lesley Molseed would not have been convicted without it.

    However, the European Court is absolutely right to consider the U.K. system to be in breach of the convention. The database does not have statutory authority though the collection of samples does. There is no proper process for removal of samples other than vague Chief Constable discretion which is “palm tree injustice”; the system is applied to children; the same rules do not apply in Scotland and, frankly, the difference cannot be justifed by saying Scotland has a separate criminal law. One could go on.

    Above all, the European Court is right to have taken a “a more serious view of the effect of the interference on individuals.” The European Convention is all about the rights of individuals versus the State.

    Regrettably, the whole case shows that the British people need to have government which truly respects human rights and freedoms and which does not merely treat us as “subjects”

  5. Carl, I’m not dismissing the benefits of DNA in detecting crime – it is excellent in a population small enough to not have false positives. By contrast, in a database that can have a single false positive (because the actual malefactor is not in the database) there is a real prospect of injustice.

    By contrast, if there were a large database, and a match were found, and a jury properly understood that that in itself means very little, then it has no value in enhancing the detection of crime.

    There may be an argument for retaining the DNA of those suspected of certain crimes where DNA evidence is likely to be left, but finger prints or other identifying evidence are unlikely to be left behind (if any such category is not empty), but that is something different from the scheme that we have here.

  6. Carl _ I’m with the ECHR on this.

    Quite unacceptable for the State to hold DNA samples / fingerprints for innocent people. These record should be destroyed.

    If the State wishes to have full ID / Biometrics – the proper way forward is through legislation in parliament on the specific issue as part of a clarly publicised manifesto (even if not read!) at an election by a properly elected government… not by back door criminal law statutes which are not widely publicised to the British public.

    ID cards (and any form of biometric recording, should, in my view, be a matter for manifesto and very clear publicity to a British electorate and then be passed as specific legislation in Parliament to be legitimate.

    This is, I accept, a political, as opposed to a ‘legal’ argument but is, nevertheless, not an unreasonable position to take.

    (I shall ignore, for the purposes of this analysis, the nature of the Prime Minister’s ‘election’ as Prime Minister)

    I take this view on pragmatic lines of *appeasement* and thin end of wedge concepts.

    I’m afraid that I do not have sufficient faith in science (at this stage of development) or the ability of the state to hold personal records (witness the recent data fiasco(s)) to accept the routine line of “if you have done nothing wrong, you have nothing to fear’.

    It is a complex issue and one that needs further, measured, consideration.

    There is a tendency in this country for *mission creep*. Government needs to be aware of this and retain the faith of the people governed.

    It is, I understand, possible to ‘place fingerprints and DNA’ at the scene of crimes?

    Where will it all end? – the erosion of civil liberties has already been fairly extreme. One cannot walk in many cities without being filmed by CCTV. Is this the way forward – total regulation through surveillance, records, databases, DNA registers?

    I’m not sure we have reached the maturity of policing or government in this country to accept this level of record keeping over those who are innocent of crime.

    Fortunately, I am for the present at least, allowed to express a dissonant opinion – and I agree with the ECHR – it is a disproportionate interference with the rights of the innocent to keep personal records on record – after all, at present, the police can take this evidence for a substantial range of ‘crime’ – even if no charges are pressed. I am not a criminal lawyer, as you know, so I am (as you are) happy to be corrected if I have made any mistatements of the law above.

    My view may not accord with those who seek further (or total control) over policing – but I suspect that my view may be a majority view. We shall see,

  7. Forgive typos – parentheses errors above … it has been a good, if long, day šŸ™‚

  8. Charon QC, Thanks for putting into words what I was trying to say earlier.

    I have re-read Mr Gardner’s CV at the top of the blog. I had thought of him as a lawyer who supported Labour (God knows, there’s enough of them!). After these few recent posts in which authoritarian tendencies shine through, I must now conclude that he is a Labour supporter who happens to be a lawyer.

  9. Whichever way you like, Yokel! I think it’d be a pretty funny reading of this blog to think of me as an ultra-partisan Labourite, though, to be honest.

    And if you want to see my anti-authoritarian tendencies, let’s talk about the Green/Galley arrests. You’ll read liberal stuff from me, then. I may seem illiberal on the searches, but that’s because the searches aren’t the problem.

  10. Yokel…No… Carl is one of the most measured people I know as the entirety of this blog reveals – as I suspect you know !

    His analysis, in law, is perfectly sustainable and his commentaries – why I enjoy my podcasts with him – always thoughtful.

    The difficulty here is the divergence between a legal analysis and a political one. I just happen to be fairly left on this issue – and may well not be in tune with many – that matters not. What matters is elected and responsible government.

    I feel, after voting Labour for thirty years, that this government may be losing sight of roots and the freedom to live lives without over-government.

    To be fair – The Head of Legal blog is about analysis of the law – rightly so – as it stands – and it is pretty accurate – and provocative – as it should be.

    Constitutional Law is a fantastically difficult area of law, as I suspect you know! We had Matthew Norman in the press only today suggesting we need a written constitution. God help us if it is going to be drafted by the present (or any government) in these ‘troubled times’.

    I’m a fan of our unwritten constitution… imperfect to be sure, woolly at times – subject to judicial interpretation (hopefully even better when The new Supreme Court starts work next year) – but relatively flexible to meet changing (but hopefully intelligently moderated) needs.

    But I would say that.. would I not? – given my political, rather then legalo-analytical comment above.

    It is a fascinating debate though and a pleasure to be able to go onto a blog and comment freely, much as I enjoy Guido and his ravening horde of commenters, without having to question the prime minister’s parentage or sanity using anglo-saxon!

    I also have no doubt at all, should Carl wish to take issue… that he will do so in his direct Northern manner.

    That is the pleasure of these issues.

  11. Marcin: I actually think a larger database is safer in terms of false positives, precisely because they’re more likely. If there are a few thousand people on the database and a match pops up, the police will be pretty certain they’ve got their guy, and that’ll be fairly convincing to the jury too.

    A database of a few million, though, and the chances of a false positive are higher, and this can be communicated to the jury. And if there are enough people on the database, there might well be three or four matches – which would put DNA evidence at the appropriate level of ‘strong, but far from conclusive’ while still alerting the police to possible suspects.

    Anyway, on the main issue, I’m fairly surprised about this too, but I’m glad at least that they’ve included fingerprints in the judgment. I’m not 100% sure which way I go on the overall issue, but I got very annoyed by opponents only ever referring to the ‘DNA database’ and giving the impression that it was an entire genome sequence rather than, effectively, a genetic fingerprint that was being kept on file. There seemed to be a ‘ooh, this science stuff is scary’ element to the public opposition to the database – many people who opposed the DNA database would never have had the same problems with the fingerprint database.

    (I’m slightly drunk and not explaining myself too well, but I hope you can get the gist of my comments)

  12. @Charon QC said – “I’m a fan of our unwritten constitution… imperfect to be sure, woolly at times – subject to judicial interpretation (hopefully even better when The new Supreme Court starts work next year) – but relatively flexible to meet changing (but hopefully intelligently moderated) needs.”

    Well said – you are by no means the only fan of our constitutional arrangements and I also entirely agree that to get a single government to draft a new written constitution would be highly dangerous. Many dictatorships have had written constitutions – e.g. in Zimbabwe the written constitution did not prevent Mugabe establishing a one party State.

  13. I agree: I think embarking on a written constitution would be the maddest constitutional step we could take in this country; though unfortunately unthinking received opinion is in favour.

    If you think about it, it means abandoning Parliamentary sovereignty: the point of a written constitution, as in the US, as in Germany, is that it is the highest law, higher than Acts of Parliament. Most people don’t think about that.

  14. A written constitution would be a disaster for a free Britain.

  15. Haven’t we got a written constitution now? Its called the Lisbon Treaty. It will come into effect as soon as Mandy and Campbell have lied their way through the next election.

  16. I thought we already had a written constitution. By a chap called Walter Bagehot (sp?) about 150 years ago?

  17. Surely the only people who should worry about being part o the DNA database are people who have done something against the law and may be convicted as a result. If everyone was on the database you wouldnt have to worry about it showing up on a CRB check because it would show on everyones. Also it wouldnt really be against your human rights if everyone is on the database. I would happily give my DNA because I know I have done nothing wrong and it would eliminate me from any investigations.
    At the way things stand i understand why people who have been aquited or had charges dropped are annoyed about having their DNA kept especially when the DNA has been taken as part of a legal proceeding and not given by the free will of the individual.
    it seems starnge to me how people are so willing to slate the goverment for wanting to cut crime rates when people are so often complaining about how many knife attacks have happened recently!!


  • Nicholas Bratza and the margin of appreciation February 12, 2009

    […] In theĀ HirstĀ case andĀ a couple of those which have followed, the court ignored one of its own key legal principles (the ā€œmargin of appreciationā€ it supposedly allows states), preferring to micromanage policy throughout Europe. The same sort of thing happened, Iā€™d argue, in the DNA database case,Ā S v Marper. […]