European Court of Human Rights rules on National DNA database

22 December 2008

The European Court of Human Rights (ECHR) has ruled that the retention of fingerprint information, cellular material and DNA profile of two British men in the National DNA database is in violation of Article 8 of the European Convention on Human Rights (see BBC news). The men had appealed for their data to be removed as they had not been convicted of any crime, and approached the European Court of Human Rights after their cases were rejected by the House of Lords. In their judgement, the ECHR was "struck by the blanket and indiscriminate nature of the power of retention in England and Wales’’. In particular, the Court singled out the fact that the existing regime takes no account of age of the subject (contrary to the UN Convention on the Rights of the Child 1989, which asserts the right of every child to be treated with dignity and worth). This was one of the grounds on which the Nuffield Council on Bioethics reached their critical assessment of the existing system (see previous news). The ECHR finding against the UK Government was also on the basis that the system failed to discriminate on the basis of the seriousness of the crime or the likelihood of reoffending as do comparative systems elsewhere in Europe. The Court also noted that the Government had failed to justify continuing with the existing system by describing the number of convictions that would have been lost had the current system not been in place.

The ruling was welcomed by the Nuffield Council on Bioethics, who in their 2007 report The Forensic Use of Bioinformation: ethical issues (see previous news) cautioned against the storage of such information when the alleged offences are minor, or individuals are not ultimately charged or convicted (see press release). The case highlights the sensitivity of retaining DNA samples and data rather than fingerprints, and both the case and the report by the Nuffield Council draw distinctions between the ethical issues raised by the storage of fingerprint data, digitised DNA profiles and biological samples. The ECHR noted that the latter two categories have a stronger potential for future use of personal information than fingerprint information, and are capable of being used "as a means of identifying genetic relationships between individuals" and as such "their retention interferes with the right to the private life of the individuals concerned".

In response to this ruling, the UK Home Secretary has announced the publication of a White Paper on forensics in 2009, with the aim of creating a more proportionate and effective system of retention. The Government have also announced the immediate withdrawal of samples from children aged under 10 years from the database (around 70 samples). The Human Genetics Commission is currently involved in a project aiming to form recommendations on issues relating to the National DNA Database for England and Wales and the Scottish forensic database; the Scottish database differs in that, DNA of unconvicted persons is only retained in the case of adults charged with violent or sexual offences and even then, only for three years, extendable for two more years following consent from a sheriff.

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