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.