Last week, the European Court of Human Rights heard a case challenging the compatibility with human rights of the practice (and law) of retaining the DNA profiles of non-offenders on DNA databases. A webcast of the hearing is now online.
This case, while it involves a quite narrow set of technical issues, is probably the most extreme imaginable clash between human rights and the ‘law and order’ movement. The applicants – an 11 year-old who was DNA sampled after he was charged with armed robbery and whose profile will be forever retained despite his acquittal on those charges months afterward; and an adult who was DNA sampled after he was arrested for harrassing his partner, but whose profile will be forever retained despite her dropping those charged and reconciling with him – argue that the retention breaches their rights to privacy and their right not to be discriminated against (in comparison to people who have never been arrested for anything.) The respondent – the UK, naturally, the world’s leader in DNA databasing – argues that retention doesn’t affect anyone except people who subsequently commit crimes (and, in turn, their future victims) and that there’s nothing wrong with permanently distinguishing between arrestees (how ever temporary) and the rest of us. The UK also, of course, highlights the extraordinary utility of DNA databases as crime-solvers.
My (risibly) short take: the applicants have nearly all the principles on their side whilst the respondent has nearly all the practicalities on its side. It’s an agonisingly hard case, at least when it comes to applying the ‘reasonableness’ jurisprudence that is ubiquitous in human rights law. However, the UK House of Lords thought it was an easy case and only one of them even reached the reasonableness issue. In particular, Lord Brown of Eaton-under-Heywood was simply baffled by the applicants’ arguments and wrote a concurring judgment just to say so.
The UK, at the ECtHR hearing, spent much of its time simply describing DNA profiling and its glorious history, including its recent history. One extraordinary argument was that having any destruction rules at all would be discriminatory against those people who will inevitably be convicted when their DNA is nevertheless unlawfully retained (as English law permits.) The applicants relied heavily on a recent bioethics report. The questioning from the judges was notably nearly all aimed at the UK.
Two Australian jurisdictions – South Australia and Northern Territory – currently allow the permanent retention of DNA samples from unconvicted suspects. The rest of Australia – including Victoria – allows such retention for up to a year, which raises similar (albeit milder) human rights concerns. However, any decision from the EtCHR would not be directly applicable here, as the Charter’s privacy right is narrower than the ECHR’s and the Charter’s discrimination right only covers particular sorts of discrimination, which don’t include discrimination on the basis of contact with the criminal justice system. Nevertheless, it is possible that a similar Charter argument to the discrimination argument could be framed on the basis of the right to be presumed innocent (although the limitation of that right to persons ‘charged’ could be a problem.)