The end of DNA database expansion

Back in March, I referred to a DNA database case before the European Court of Human Rights as the human rights case of the decade, pitting the clearest principles against the clearest practicalities. The House of Lords had unanimously ruled in favour of the practicalities, with one of the Law Lords, Simon Brown, issuing a concurrence just to say:

My concern is simply to indicate how very clear a case this seems to me to be. Indeed my only real problem now, following full investigation of the case with the assistance not only of the parties but from Liberty too, is in discerning any coherent basis on which the challenge can still be sustained.

Yesterday,  the seventeen judges of the European Court’s Grand Chamber unanimously upheld that very challenge, ruling firmly in favour of principle. It’s a stunning development that will put both DNA databases and human rights law at a crossroads.

The applicants in S & Marper v UK [2008] ECHR 1581 were both residents of Sheffield. In early 2001, at the age of 11, LS was arrested on a charge of armed robbery. Two months later, Michael Marper was arrested on a charge of harassing his partner. On June 14th, both were cleared, S by acquittal, Marper by a notice of discontinuance after he reconciled with his partner. Both then asked for their fingerprints and DNA, taken on arrest, to be destroyed, but the police refused, saying they wanted to retain the information for use in future criminal investigations. The police’s plan was made possible by a 2001 change in UK law, following an unsuccessful attempt by two people linked to crimes after their DNA should have been destroyed to challenge their convictions. The new amendment to the Police and Criminal Evidence Act (PACE) allowed the permanent retention of fingerprint and DNA samples in most circumstances:

64(1A) Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution.

Subsection (3) required the destruction of DNA taken from people never suspected of an offence (e.g. bystanders, such as residents of a burgled house who DNA is taken to eliminate irrelevant crime scene samples.) So, PACE s64(1A)  allowed the retention of all suspect samples, even when the suspects were cleared. S & Marper’s challenge to the police’s decision under the Human Rights Act was dismissed, in turn,  by a trial judge, the Court of Appeal (in a 2-1 decision with Lord Sedley dissenting) and the House of Lords, before today’s stunning reversal by the ECtHR.

The European Court’s decision was based on the ECHR’s right to privacy:

8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.

8.2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The government argued that the only way that DNA can interfere with privacy is at the time of sampling (it wasn’t disputed that S & Marper were lawfully and, it seems, properly sampled) and at the time of matching to an unsolved crime (when the relevant privacy right is the unfortunate right to get away with such crimes undetected.) But the ECtHR has long held that the mere storage of data can amount to an interference with privacy, depending on its content and context.

So, is the storage of DNA and fingerprints an interference? The ECtHR held that this test was satisfied for biological material (because of the wealth of genetic information it contains), the tiny DNA profiles on databases (because they can still be used to show relatedness and ethnic origin) and (overturning an earlier ruling) fingerprints (because they are stored on a computer allowing precise identification in a variety of circumstances.) It’s a little funny that the ECtHR’s reasoning on the most significant and contentious data, DNA profiles, was tied to some relatively recent side-uses of DNA profiles: familial screening (used to trawl the database for ‘partial’ profile matches, yielding possible relatives of the source of a crime scene sample. This technique was notably used to catch the UK’s ‘shoe rapist’, who was detetected after a partial match to his sister, who was sampled after arrest for drink driving), possibly infringing family life too, and ethnicity tests (most famously used to identify London’s gerontophile rapist as Carribean, mostly likely frm the lower Winward islands.) Would cutting out these techniques save the UK database? Probably not, because the ECtHR’s reasoning on fingerprints (which have no such side-applications was based solidly on its traditional identification use, including the utility for computer assisted identification. DNA profiles, being digital, rather than analogue, are much more suited to comptuer-assisted identification (and, indeed, that is by far their primary database use.) I don’t know why the Court didn’t apply the same reasoning for both profiles and fingerprints. Anyway, the finding that retention of any of these things in an identifable form on a crime detection database breached Article 8.1 was a no-brainer (although, alas, a number of UK Law Lords failed the test.)

The really hard question is Article 8.2, i.e. justification. There’s no doubt that s64(1A) exists ‘for the prevention of disorder or crime’ (although some see the potential other uses as a big point.) But is retention ‘in accordance with the law’ and ‘necessary in a democratic society’? The ECtHR had some concerns about the former, because one of the s64(1A)’s use restrictions – ‘the prevention of.. crime’ – is alarmingly vague (ableit tracking Article 8.2 precisely!) But the Court didn’t decide that point, instead focussing on necessity. The Court, while skeptical of statistics from the UK showing the number of crimes, notably murders and rapes, supposedly solved through database matching to profiles retained from cleared suspects, acknowledged that retention would contribute to crime prevention and detection. However:

The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests. In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed…; in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.

The Court’s conclusion was that ‘the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society.’

So, that’s the judgment. But what’s really interesting are the implications:

First, there are the implications for human rights law. I don’t think there’s anything stunning about the Court’s conception of privacy as covering the retention of identification data, but S & Marper is clearly a landmark case on reasonable limits. The Court noted its usual ‘margin of appreciation’ jurisprudence, but held that that principle is at its narrowest when it comes to the retention on computers of individual data for policing purposes. That’s a finding with major implications for modern policing. Moreover, the Court was heavily influenced by the fact that the rest of Europe (notably Scotland) had more restrictive practices when it comes to databasing. The UK argued that this wasn’t fair, as it was at the cutting edge when it comes to DNA (which is absolutely true):

The Government lay emphasis on the fact that the United Kingdom is in the vanguard of the development of the use of DNA samples in the detection of crime and that other States have not yet achieved the same maturity in terms of the size and resources of DNA databases. It is argued that the comparative analysis of the law and practice in other States with less advanced systems is accordingly of limited importance.

The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life. The Court observes that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In the Court’s view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.

That’s quite a new approach to how human rights law meets new technological developments, arguably the opposite of how courts typically approach such matters. It has surprising implications, in that it may freeze a developing legal approach around the consensus at a particular point in time. That being said, one of the Court’s arguments might leave the door open for a much bigger change:

The Government argue that the power of retention applies to all fingerprints and samples taken from a person in connection with the investigation of an offence and does not depend on innocence or guilt. It is further submitted that the fingerprints and samples have been lawfully taken and that their retention is not related to the fact that they were originally suspected of committing a crime, the sole reason for their retention being to increase the size and, therefore, the use of the database in the identification of offenders in the future. The Court, however, finds this argument difficult to reconcile with the obligation imposed by section 64(3) of the PACE to destroy the fingerprints and samples of volunteers at their request, despite the similar value of the material in increasing the size and utility of the database. Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants’ private data compared to that of other unconvicted people.

That would seem to leave room for the favoured solution of many (including DNA identification inventor Sir Alec Jennings and, um, me): a universal DNA database, that avoids all the nastiness of a database consisting only of people who’ve had some sort of encounter with the criminal justice system. (By the way, in the UK, volunteers – notably those in mass DNA screenings – can opt, at the time of their volunteering, to be permanently and irrevocably on the database: see s64(3AC) of the PACE. I’m told that a number of such volunteers were later matched to crimes.)

Second, there are the implications for the UK, which is going to be in something of a bind between its cherished National DNA Database (NDNAD) and its somewhat differently cherished Human Rights Act. The judgment certainly won’t destroy NDNAD and even the retention of cleared suspects’ DNA seems possible, at least in some circumstances. The ECtHR highlighted Scotland’s model, where only charged violent and sex offence suspects are retained once they are cleared, and then only for three or five years. A variation on that model will presumably be the outcome of the dialogue. But a much more difficult question is the fate of the close to a million cleared suspect samples presently on NDNAD. An article in the Guardian notes that the UK has been slow to implement legal, as opposed to policy, changes in response to ECtHR rulings, citing the UK’s failure to give prisoners the vote. But I think that article misses the point, which is that the final decision on whether or not to retain or destroy DNA and prints rests with police and database administrators, who are obliged under the UKHRA to act compatibly with human rights unless the law gives them no choice. Courts will have to consider whether s64(1A) leaves no choice, an issue that may yield some fascinating jurisprudence on the UKHRA equivalent to Charter s. 38(2). Still more interestingly, UK courts (unlike Australian ones) are also bound to act compatibly with human rights, so they’ll have to rule on whether convictions based on wrongly retained samples can stand. As already noted, s64(1A) was prompted by just that issue. The House of Lords unboldly ruled that they could, though perhaps the ECtHR ruling might cast those issues in a new light.

Finally, there are the implications for Victoria. The relevant right in the Charter is this one:

13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with…

It could be argued that Charter s. 13(a) is narrower than ECHR Article 8 in two respects. First, it is limited to interferences in privacy, rather than Article 8’s ‘right to respect for private life’. Second, it only bars ‘arbitrary’ interferences, rather than all interferences that aren’t ‘necessary’ to achieve the goals set out in Article 8.2. However, the reasoning of the ECtHR seems to speak directly to these arguably narrower privacy rights in the Charter. In particular, the Court rejected the government’s argument that temporary suspicion is an appropriate basis for expanding a database that is used to detect fresh crimes:

The Government contend that the retention could not be considered as having any direct or significant effect on the applicants unless matches in the database were to implicate them in the commission of offences on a future occasion. The Court is unable to accept this argument and reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data. Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the Court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal (see Asan Rushiti v. Austria, no. 28389/95, § 31, 21 March 2000, with further references). It is true that the retention of the applicants’ private data cannot be equated with the voicing of suspicions. Nonetheless, their perception that they are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed.

The latter part of this is, of course, a reference to the ECtHR’s presumption of innocence jurisprudence. (It seems that the Court is undeterred by Hollingworth J’s critique of that jurisprudence as ‘confusing’ in Sabet.) Indeed, the Court seems to have expanded its approach to cover, not only the ‘voicing’ of suspicion, but also acts that create the ‘perception’ that cleared people ‘are not being treated as innocent’. Interesting. Anyway, the Court’s approach seems well-attuned to a critic of a similar approach here as both an ‘arbitrary interference’ and, perhaps, a breach of Charter s. 25(1) too (although there’d be the ‘charge’ and Sabet hurdles, at least if the VGSO’s approach to rights carries the day.)


However, Victoria doesn’t currently follow the UK PACE on retention. (The Northern Territory and, following a decision by a South Australian court to acquit a man who was detected through DNA that should have been destroyed, South Australia like the UK allow for permanent retention of cleared people. But they have no Charter.) Victoria’s Crimes Act doesn’t allow the blanket retention of fingerprints and DNA from people cleared of suspicion. However, it allows the gathering of such samples on the basis of mere suspicion (rather than arrest, as in the UK) and doesn’t require the destruction of those samples as soon as that suspicion dissipates (e.g. by the sample itself clearing the suspect.) Instead, destruction follows from a time limit:

464O(2) If a person has been fingerprinted in accordance with this Subdivision and- (a) the person has not been charged with a relevant offence at the end of the period of 6 months after the taking of the fingerprints; or (b) the person has been so charged but the charge is not proceeded with or the person is not found guilty of the offence or any other relevant offence, whether on appeal or otherwise, before the end of that period- the Chief Commissioner of Police must, subject to subsection (4), destroy the fingerprints and any record, copy or photograph of them, or cause them to be destroyed at the time specified in subsection (3).

464ZG(3) Subject to section 464ZFD(2), if a forensic procedure has been conducted on a person and- (a) the person has not been charged with a relevant offence at the end of the period of 12 months after the conduct of the procedure; or (b) the person has been so charged but the charge is not proceeded with or the person is not found guilty (except because of mental impairment) of the offence or any other relevant offence, whether on appeal or otherwise, before the end of that period- the Chief Commissioner of Police, subject to subsection (5), must destroy, or cause to be destroyed, at the time specified in subsection (4) any sample taken and any related material and information.

For DNA profiles, matching between crime scenes and suspect profiles is specifically permitted, so effectively all suspect samples go straight onto the database and stay there for at least 12 months, even if the suspicion is cleared. There are no limits on what can be done with fingerprints, apart from destruction after 6 months. These time limits are tighter than the Scottish approach favoured by the ECtHR (although note the possibility of retention beyond the time limits, as discussed here.) However, the Victorian approach is also broader than Scotland’s in two respects: it is not limited to people who are charged (thus covering people who are merely arrested, or even just suspected) and it is not limited to serious violent or sexual offences (instead covering all offences that can be lawfully sampled, presently  any indictable offence (if the police get a court order) and all offences against the person, burglaries, arson, contamination, exposives, vehicular homicide and serious drug offences (without a court order.))

In practice, given the short timelines, any rights compatibility issue with Victoria’s DNA retention practices is most likely to arise in Victoria if a cleared person is prosecuted based on a match obtained before the destruction deadline. As in the UK, this could open an argument that Victoria Police acted unlawfully in retaining the data, although here, as there, ordinary evidence rules might not lead to exlcusion.  What is especially interesting, though,  is that the Crimes Act has mandatory inadmissibility rules for evidence obtained from fingerprints and DNA that should have been destroyed under s464O and 464ZG, and the vaguaries of Charter s. 39(1) may allow or require the use of those strict rules in the event that the police’s retention of samples is in breach of the conduct mandate (see here for a discussion of this argument.)

However, the implications of S & Marper may sound in another way under the Charter. The government’s Statement of Government Intentions promised a new Criminal Investigations Bill, as part of the reform of the Crimes Act. It includes provisions that:

clarify processes and provide appropriate safeguards for the collection, use and retention of DNA samples including the regulation of samples taken from volunteers, mass screening and covert processes.

Given modern trends, you have to wonder whether there was a plan to shift to the UK or South Australian blanket retention approach, rather than the tricky time limits. If that’s so, then someone’s going to have an interesting time responding to S & Marper when they write the bill’s Statement of Compatibility.  The Bill was slated for introduction in ‘2008 or 2009’. It’s not going to be 2008, as it wasn’t introduced in the final session of Parliament this year. So, Victoria may well be one of the first human rights jurisdictions to aim for DNA database expansion in a post-Marper world.

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