DNA Testing, Right to Private and Family Life and Limitations on Rights

S and Marper v United Kingdom [2008] ECHR 30562/04 [Grand Chamber] (4 December 2008)

The case of S and Marper v United Kingdom considered whether the retention of DNA and fingerprints from innocent people is consistent with human rights law.

This case will be particularly informative for the interpretation and application of s 13 (privacy) and s 7 (limitations) of the Victorian Charter.

Facts

The first applicant, Mr S, was charged with attempted robbery at the age of eleven.  His fingerprints and DNA samples were taken and he was subsequently acquitted.

The second applicant, Mr Marper, was arrested and charged with harassment of his partner.  His fingerprints and DNA sample were taken.  The charge was not pressed and the case was formally discontinued.

Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases, the police refused.

Decision

In making its decision, the Grand Chamber of the European Court of Human Rights considered the following:

  1. whether the retention by the authorities of the applicants’ fingerprints, DNA profiles and cellular samples constituted an interference in their private life; and
  2. if so, whether the interference was: (a) in accordance with the law; (b) in pursuit of a legitimate aim; and (c) necessary in a democratic society.

The Grand Chamber decided that the retention of both cellular samples and DNA profiles constituted an interference with the right to respect for the private lives of the applicants within the meaning of art 8 of the European Convention on Human Rights.  The mere storing of data relating to the private life of an individual amounts to an interference.

Further, the Grand Chamber found that the interference was not justified.  In this regard, the Grand Chamber stated:

The blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, fails to strike a fair balance between the competing public and private interests.  Accordingly, the retention constituted a disproportionate interference with the applicants’ right to respect for private life and cannot be regarding as necessary in a democratic society.

Relevance to the Victorian Charter

This decision may be significant to the the interpretation and application of s 13 (privacy) and s 7 (limitations) of the Charter, particularly in the context of the retention of cellular samples, DNA profiles and fingerprinting.

Section 13 – Right to Privacy

Section 13(a) of the Charter states that ‘a person has the right not to have his or her privacy, family, home, or correspondence unlawfully or arbitrarily interfered with’.

In interpreting the corresponding ‘right to private life’ protected by art 8 of the European Convention, the Grand Chamber stated that the concept of ‘private life’ is a broad term not susceptible to exhaustive definition.  It covers:

  • the physical and psychological integrity of a person, embracing multiple aspects of the person’s physical and social identity;
  • elements such as ethnic identity, gender identification, name, a person’s right to their image, sexual orientation and sexual life;
  • a person’s name, other means of personal identification and of linking to a family;
  • information about the person’s health; and
  • the right to personal development, and the right to establish and develop relationships with other human beings and the outside world.

Section 7 – Limitations on Human Rights

Section 7(2) presents a notion of proportionality and states that a human right may be subject under law to reasonable justified limits, taking into account factors which aim to balance competing public and private interests.

It is complex to make an assessment of whether a restriction on rights is justified or not by applying the test prescribed by s 7(2) of the Charter.  The Grand Chamber’s assessment of the ‘justification for interference’ principle presents as a particularly useful guide in this regard.

Was the interference justified because it was in accordance with the law (or under law)?

The Grand Chamber recalled well established case law that the wording ‘in accordance with the law’ requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law.  The law must be formulated with sufficient precision to enable the individual to regulate his or her conduct.

The Grand Chamber further commented that it was necessary for the legislation to have clear, detailed rules governing the scope and application of measures.  In looking at the relevant legislation in this case, which dealt with the retention and storage of DNA profiles and fingerprints, the Grand Chamber stated that, the legislation should also have minimum safeguards concerning, among other things, duration, storage, usage, access of third parties and procedures for its destruction. Legislation must provide sufficient guarantees against the risk of abuse and arbitrariness.

Did the interference serve a legitimate aim?

The Grand Chamber stated that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection and therefore prevention of crime.

This is relevant when considering the importance of the purpose of the limitation (s 7(2)(b) of the Charter) and the relationship between the limitation and its purpose (s 7(2)(d)).

Was the interference necessary and proportionate in a democratic society?

According to the Grand Chamber, an interference will be considered ‘necessary in a democratic society’ for a legitimate aim if it answers a ‘pressing social need’ and in particular, if it is proportionate to the legitimate aim.  The onus is on national authorities to provide ‘relevant and sufficient’ reasons and evidence for any interference.  The margin of appreciation conferred on competent national authorities in this assessment will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights.

In this case, the Grand Chamber commented that the protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life.  The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with art 8 of the Convention.  The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.

The Grand Chamber considered that the relevant law did not conform with this criteria and found a breach of art 8.

The decision is available at http://www.bailii.org/eu/cases/ECHR/2008/1581.html

Maryam Minai is on secondment to the Human Rights Law Resource Centre from Mallesons Stephen Jaques